First Amendment debate rages over Ariz. frat’s behavior
By Anne Ryman, The Arizona Republic
Both sides argue whether MLK party was covered by free speech or racist.
PHOENIX — Just as social media played a big role in spreading images of partygoers at a controversial ASU fraternity event on Martin Luther King Jr. weekend, Twitter and Facebook have buzzed with debate over whether their behavior was racist and if it was free speech.
Many condemned the students’ actions at the Tau Kappa Epsilon fraternity party, which included partygoers wearing stereotypical hip-hop clothes and posing with hollowed-out watermelon cups, according to photos posted on the Internet.
As one person wrote Wednesday on Twitter: “ASU should revoke acceptance — expel them — for any students who thought it was ok to go to such a party.” The post ended with a hashtag that said: #sicktostomach.
Others felt Arizona State University officials would be going too far if they expelled students who went to the party, arguing that the behavior, although offensive, still fell under the umbrella of the First Amendment.
First Amendment experts have different views on whether the behavior was protected under the Constitution.”This is the United States of America, not the United States of I have a right to never be offended,” another person posted on Facebook. “The students are protected by the right of free speech.” The post went on to say the students’ behavior was “stupid,” but added, “It’s their God given right to do it.”
The Constitution prohibits government entities, including state universities such as ASU, from interfering with freedom of speech. But the U.S. Supreme Court has upheld exceptions, including speech that would incite reasonable people to immediate violence, harassment or threats or intimidation.
All the facts aren’t known, but the party incident raises questions about the intent of the speech, said Dan Pochoda, legal director of the American Civil Liberties Union of Arizona.
“It does appear it was a conscious attempt to degrade an entire race, and anyone taking part in such action would know it increases the difficulty of students of color to participate in the educational community,” he said.
Pochoda said the ACLU has not been asked to get involved in the case.
ASU officials put the Tau Kappa Epsilon fraternity on interim suspension Monday after receiving reports that fraternity members hosted an unregistered party on Sunday with racial overtones and underage drinking.
Local civil-rights leaders want the university to revoke the fraternity’s recognition, which means they couldn’t recruit members or hold meetings on campus.
They also want ASU to expel students who went to the party and take steps to create a “more accepting environment” at the university.
They threatened to boycott the university’s athletics and a fundraising campaign to rebuild Sun Devil Stadium unless their demands are met.
ASU is investigating the fraternity for four possible violations of the student code of conduct:
• Engaging in discriminatory activities.
• Off-campus conduct that may present a risk or danger.
• Violation of laws governing alcohol.
• Violation of earlier disciplinary sanction.
At the time of the party, the fraternity was on university probation for a fight in November 2012, when police reports say fraternity members confronted a rival fraternity member, an African-American, and beat him. He suffered a broken jaw, a concussion and cuts.
Experts aren’t certain whether the latest incident crossed a constitutional line.
Gene Policinski, chief operating officer of the Newseum Institute in Washington, D.C., believes the Constitution protects the students’ right to dress in the manner they did as well as their offensive comments.
The Newseum is a nonprofit media education organization that includes the First Amendment Center.
But he said the students may not be in the clear if they violated other university rules such as underage consumption of alcohol.
The fraternity also may have a contract with the university that outlined expectations, which would be a separate issue from free speech.
Parties with controversial themes pop up every year, according to a national organization that tracks free-speech issues on campuses. Last year, the Kappa Sigma Fraternity at Duke University in Durham, N.C., found itself under scrutiny after hosting an Asian-themed party with conical hats and geisha clothing. The national chapter suspended the fraternity.
Robert Shibley, senior vice president for the Foundation for Individual Rights in Education, said choosing a party theme is an expressive act, intended to communicate a message and is therefore protected by the Constitution.
“If they have broken other rules, students or organizations may be punished for those infractions, but their punishment cannot be based on or enhanced by the college’s desire to condemn a certain viewpoint,” he said.
The Rev. Jarrett Maupin, a local civil-rights advocate, said he is “deeply troubled” by social-media posts that say the party behavior falls into the category of free speech.
“You have a right in America to do a lot of things, but it doesn’t make it right,” he said. “Are we now legitimizing or giving permission to or endorsing racist behavior?”
The national chapter of Tau Kappa Epsilon is investigating and sent a representative to Arizona. In a statement issued Tuesday, spokesman Alex Baker apologized for “any offensive actions that a few of our members might have participated in” and added that the national fraternity does not condone any actions that would be defined as racist, discriminatory or offensive.
“Social events with ‘party themes’ that are defined as such have no place in our fraternity’s mission or purpose,” Baker said in the statement.
First Amendment experts say the party incident is another cautionary tale for using social media wisely. Young people often have a sense that posting something on Facebook or Twitter isn’t serious and doesn’t count, the Newseum’s Policinski said.
“I think we’re finding out all over the place that’s absolutely not the case,” he said. “It’s speech.”