Just Because It’s Offensive Doesn’t Mean It’s Illegal

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A popular area of contention in many court cases is speech, be it in the form of words or conduct. Such cases range from involving threatening words or conduct expressed over social media to words portrayed on picketed signs at a rally outside of funerals to even video game content. Sometimes the case can be as simple as words on a page.

A recent incident occurring within the Greek Life Community at North Carolina State University has many upset.  With the discovery of a book containing graphic and offensive language regarding women, African Americans, and other statement topics, the Pi Kappa Phi fraternity was suspended from campus.  While lawsuits have not been brought against the fraternity, the owner of the book, or those brothers whose names are mentioned as having made the documented statements, it is likely such a lawsuit would not even be worth the time because the content of the book invokes the First Amendment.

Legal action has not been taken against the brothers of the fraternity whose names were contained in the book or against the fraternity brother who apparently owned the book.  

In March 2015, a small green book was found near the university’s campus. The book was found by a fellow NC State student, who immediately turned the content of the book over to media sources and then to the university.  The book appeared to be a pledge book and contained racist and sexist comments about raping people and other such gross behavior.  The statements contained in the book had names of fraternity brothers alongside them.  The fraternity was suspended by the fraternity’s national headquarters. The fraternity headquarters even stated that this type of behavior is inconsistent with their values and will not be tolerated.

Legal action has not been taken against the brothers of the fraternity whose names were contained in the book or against the fraternity brother who apparently owned the book.  However, since the university is able to establish its own regulations and policies for dealing with misbehavior and behavior that is not tolerated by the university, it did take action against the entire fraternity by suspending it.

Would legal action against the brothers of the fraternity, the owner of the book, or those whose names are mentioned in the book as having made the statements be successful?

Although legal action has not been taken against the brothers in the fraternity, the owner of the book, or even those whose names are mentioned in the book as having made the offensive statements, could there be legal consequences?  Maybe a student group would want to sue for infliction of emotional distress on a particular group of people.  Maybe the administration would want to take legal action for slander, or take action on behalf of a particular group of people on campus.  Maybe a person interpreted a certain offensive statement to be regarding her, and chooses to bring action for damages.  Would legal action against the brothers of the fraternity, the owner of the book, or those whose names are mentioned in the book as having made the statements be successful?

While it’s certainly possible for legal action to be brought of some sort, the success of that suit is not likely.  The protections of the First Amendment freedom of speech stretch far and wide, and cover a lot of speech and expressive conduct that many would find offensive.

There are various forms of speech, including commercial speech, government speech, and even expressive conduct that can be considered speech for the purpose of the First Amendment. 

The First Amendment encompasses a wide range of Constitutional protections. The First Amendment states that Congress shall not make any laws “abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government.”  There are various forms of speech, including commercial speech, government speech, and even expressive conduct that can be considered speech for the purpose of the First Amendment.  The constitutionality of speech can even vary based on means, matter, and location of the speech or expressive conduct.

Speech is constantly being challenged in the court systems, whether it’s in the form of something someone finds offensive, threats made against someone, or untrue or unflattering speech made about someone else.  However, in a majority of cases where speech has been challenged, the speech is considered permissible because of the far stretching protections of the First Amendment.

Speech generally is protected, but there are forms of speech that are considered unprotected speech.

While the First Amendment has a broad range of constitutional protections, it also has exceptions.  Speech generally is protected, but there are forms of speech that are considered unprotected speech.  For instance, obscenity in particular is often justified as unprotected speech because it protects a social interest in morality. Obscenity is often utilized in the context of pornography.  To constitute obscenity, a three-part test is conducted to determine whether speech, or a depiction that constitutes speech, is obscene.

The three-part test comes from Miller v. California, and asks three questions:” [(1)] whether the ‘average person applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; [(2)] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [(3)] whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”  Merriam-Webster defines “prurient interest” as “marked by or arousing an immoderate or unwholesome interest or desire.”  The United States Supreme Court in the Roth v. United States case puts the focus for whether speech is obscene on community standards.

Additionally, fighting words are words that when spoken would likely make the person at whom the words are targeted commit a violent act or incite violence.   Chaplinsky v. New Hampshire stated that fighting words inflict injury or incite an immediate breach of the peace simply by simply uttering them.  Chaplinsky also held that the determination of fighting words depends on the context of the words spoken and whether they would likely incite violence in the person to whom they are spoken.  Incitement is speech that causes/provokes or is likely to cause or prove illegal activity.  Determining whether speech is considered incitement requires satisfaction of the Bradenburg Test.  The elements of the Bradenburg Test were established in Bradenburg v. Ohio, where speech was determined to advocate and promote illegal activity when two conditions were satisfied: (1) the promotion is “directed to inciting or producing imminent lawless action,” and (2) the promotion is “likely to incite or produce such action.”

While the community standards do suggest that the sexist and racist content of the statements in the book are offensive and are something that society generally would not accept, they are not enough to constitute unprotected speech.

Do the statements contained in the Pi Kappa Phi fraternity book fall within an exception to the First Amendment protections as unprotected speech?  The statements contained in the Pi Kappa Phi fraternity book were certainly offensive and derogatory towards women, African Americans, and others.  The purpose of the book was to stay within the fraternity and serve as a sort of pledging ritual, and appears to not have been intended to be shared with the general public.  It does not appear the book is obscene, even though it is highly offensive.

The statements contained in the book are obscene, likely constitute fighting words, and incitement; however they do not satisfy the Miller test.  Although the statements are offensive, the words do not necessarily appeal to a “prurient interest” to where they arouse an immoderate or unwholesome interest.  The statements do depict grotesque content in an offensive way, but not necessarily depictions of sexual conduct.  The statements, however, do lack “serious literary, artistic, political, or scientific value.” Since the Miller test requires that all three questions be satisfied, the statements contained in the book fail the test.  While the community standards do suggest that the sexist and racist content of the statements in the book are offensive and are something that society generally would not accept, they are not enough to constitute unprotected speech in the form of obscenity.

The book does not appear to fall within the category of fighting words, either, because the statements, while offensive are not likely to immediately incite violence or incite a person at whom they are directed to commit a violent act.  Therefore, in this particular context, because the words are not likely to incite an immediate breach, they are not fighting words.  The words would, if anything, cause someone to be offended at the statements and even cause someone to disassociate with that person.  However, the words do not seem to, by their mere utterance, invoke immediate violence.

The statements contained in the book are not likely considered incitement, either, because again they do not advocate for or provoke illegal activity.  The words do not seem to advocate or promote criminal acts or illegal activity in that they do not advocate for imminent lawless action of some sort, nor do they seem to have the effect of actually promoting such illegal action.  Instead, the statements tend to illustrate sexist opinions and racist opinions, but do not necessarily advocate for the commission of an illegal activity or the activity illustrated in the statements.  Because the statements do not in themselves advocate for illegal activity, but instead seem to more so illustrate an offensive opinion, they are not incitement.

Courts have consistently held in favor of speech, and it often takes a lot for speech to be considered unprotected speech.

Because the statements made in the fraternity book do not fall within one of the facets of unprotected speech, they are likely to fall within the protections of the First Amendment.  Courts have consistently held in favor of speech, and it often takes a lot for speech to be considered unprotected speech.  The statements contained in this book are not likely to be exceptions.

While a lawsuit against those involved in the writing of the fraternity pledge book will not likely be successful because of the First Amendment protections, this poses many questions as to what type of speech should actually be protected.  Should this type of offensive speech be protected?  If legal action against speech of this sort is taken and successful, what type of speech is next?  What protected speech do we risk losing next?  Do we risk losing more freedoms to prevent offensive speech of this sort?

These are the concerns of strong proponents of the First Amendment freedom of speech.  But, the proponents of preventing offensive speech of this nature do not desire the potential of loss of rights to free speech, but rather are concerned with protecting those who fall victim to this type of speech.  Proponents are concerned with protecting those who may fall victim to the very speech contained in that pledge book—because although it may be harmless as only words in a fraternity pledge book, it could also be the right ammunition for someone to act on such offenses.