‘Huffington Post’ Interview Suggests President Obama Needs to Remember Con Law

Before President Barack Obama entered politics, he taught constitutional law at the University of Chicago, home of one of the nation’s top law schools. When he took the oath of office as President, he appeared to have theoretical knowledge that would help him to “preserve, protect and defend the Constitution of the United States.”

So it is disheartening that President Obama missed the opportunity to affirm the basic principles of free speech and due process in a Huffington Post interview, when asked about the recent incident at the University of Oklahoma (OU) involving fraternity members reciting a racist chant on a bus. Here’s what the President said:

Look, at any given point on any given day, somebody is doing something stupid out there. In the age of the Internet, it's going to attract attention. I don't think this is the first time that somebody at a fraternity has done something stupid, racist, sexist. It won't be the last. What was heartening was the quick response from [OU] President [David] Boren, somebody who I know well and I know who has great integrity. The quick reaction from the student body. You know, the way we have to measure progress here is not, 'Is there ever going to be an incident of racism in the country?' It's, 'How does the majority of our country respond?' And on that front, there's no doubt that the overwhelming number of students at the University of Oklahoma, and around the country, think that kind of behavior is deplorable and don't accept it. Frankly, 30 years ago or 40 years ago, there might have been a different reaction and more tolerance for that kind of racist chant.

President Obama gave a very measured analysis of the situation, playing down the “stupid” racist act itself and emphasizing the national outrage when the video of the chant went viral. He gave a shout-out to Boren for his “quick response” and to the students at OU, praising them for their “quick reaction.” But what is he talking about when it comes to Boren’s “quick response?” If the President is talking generally about Boren’s condemnation of the remarks, that’s one thing. But if his praise for the “quick response” includes what Boren actually did—expel two students identified on the video for what they said without even a hearing—then the President missed an opportunity to “preserve” the Constitution of the United States by educating people about its basic tenets.

As FIRE and others have explained, the legal issue is clear-cut. With few exceptions—and racist speech is not one of them—the government (and a public university is a state government entity) cannot punish a person for what he or she says. The President danced around that point, characterizing participating in a racist chant as “stupid,” rather than as creating a hostile educational environment. He didn’t explicitly try to justify Boren’s unilateral expulsion. But FIRE is concerned that the President’s general endorsement of Boren’s reaction and his silence about the First Amendment amount to approval of Boren’s unconstitutional actions.

So, here’s a suggested talking point for President Obama that would also reflect his role as Constitutional Lawyer in Chief:

It is important to remember that here in the United States, we do not punish people simply for what they say—no matter how offensive. The fraternity members on that bus had a right to sing a racist song, just as the rest of the country had a right to condemn them for it. I understand one of the students withdrew from OU once the video became public, which may have been his choice. But to the extent that President Boren gave in to his natural outrage and expelled these students, especially without so much as a hearing, I regret it. Our Constitution prohibits shortcuts that trample individual rights. We cannot end racism by officially punishing racist speech or demonstrate our disapproval by denying due process rights to those who make racist remarks.