A flower rests at the foot of the James Meredith statue as students make signs during protest at the University of Mississippi in Oxford, Miss., Tuesday, Feb. 18, 2014. (AP Photo/The Daily Mississippian, Thomas Graning) / AP
As three freshmen kicked out of their fraternity await a ruling from the University of Mississippi’s judicial council, a public debate has arisen as to whether the act of hanging a noose and an old Georgia flag on the James Meredith statue on campus is protected by the First Amendment.
Sigma Phi Epsilon fraternity kicked the three out, and the national headquarters has suspended the chapter pending a full investigation of how such members made it through the recruitment process.
The university will not identify the students unless criminal charges are filed, spokesman Danny Blanton said. The fraternity also would not name the students.
The line between free speech and hate speech is blurry in places, according to some legal experts.
“There’ve been volumes written by judges about where that line is, and there’s not a hard and fast line to say, ‘This is protected and this is not,’ ” said former Supreme Court Justice George Carlson of Batesville.
Mississippi College law professor Matt Steffey believes the case is clear-cut.
“What they did was deface, although they didn’t damage, what is a statue that is the property of the university. For example, if I own a flag and want to use it in protest personally, then that’s up to me. If I didn’t like the president’s policies and wanted to burn a flag in protest, that’s protected,” he said. “What I’m not permitted to do is go over to the state Capitol, take down one of their flags and burn it. It’s not my property.”
Last week, officials said there didn’t seem to be a law that would categorize the act as a crime. On Friday, the FBI said it would be taking over the investigation to see if there were any grounds for a federal charge.
“For them to prosecute a crime, there has to be evidence that there was an intent to threaten. It’s just like a threat to punch someone in the nose isn’t protected. If this expressive conduct was a threat, it would be a crime,” said Oxford attorney Tom Freeland. “I haven’t heard anything said in public that makes it that clear. It’s possible that it could be taken as an attempt to intimidate minority students, but I think they’re going to have to show something more than is publicly known right now.”
Some say Ole Miss is under a microscope.
“I don’t know if you can put it in a corner and say just because of the history, somehow it’s not protected, whereas if it had been done at some other university out west or something, it would have been. I don’t know that I can go there with that argument,” said Carlson.
“Certainly it’s true, I think, that this is more newsworthy that it happened at Ole Miss than if it had happened at Kent State or some other university that has a newsworthy past. It plays into stereotypes in a way that is easily picked up and framed by the press,” Steffey said. “But I’m not sure if I find it more noteworthy that three students did this or that the university response was so swift and serious.”
On Sunday, former Ole Miss journalism professor and Student Media Center chair Ralph Braseth weighed into the discussion on Facebook. He said in his 20 years on the Ole Miss campus, he saw unrivaled change. “The race work and dialogue at the university is unmatched based on my observation at other schools. During my years, the students put the Confederate flag down, the goofy comical plantation mascot is gone and a statue of James Meredith was erected. When I started teaching there, the African American student body was in the low single digits. It's now 16 percent,” he wrote. “...There have been black student body presidents, homecoming queens and the student newspaper has had eight black editors in the past 2O years. Those achievements are not news-makers.” He went on to say the actions of the three freshmen are reprehensible, and that there was damage, although it wasn’t specifically to the statue.
“What these bigots did does not constitute free speech because it damages the value of academic degrees, careers and an academic reputation that has taken decades to earn,” he wrote.
Carlson said Braseth makes a good point.
“Admittedly I had not thought about that. It’s valid to the extent it ought to be pursued,” he said.
Steffey said there’s no denying that there were malevolent feelings behind the action, but that it was also a product of immaturity. “It’s both hateful and stupid. The idea of putting a noose on a black man’s neck and draping him in a symbol of the confederacy is a hateful message. The fact that students did this and imperiled their education is stupid,” he said. “These are symbols of hate, they may mean other things to other people, but they were unambiguously used here.”
Steffey also pointed out that the fact that the students had already been kicked out of their fraternity and are subject to university discipline is a serious consequence to someone at that stage of life.
“You can’t frame it like they’re getting off Scot-free if they’re not charged with a crime, because they’re not,” he said.
“My response is that what these guys did was obnoxious and ought to be called out as obnoxious,” Freeland said. “I have trouble believing anyone has lived such a sheltered life that they wouldn’t understand how obnoxious this was. I have no problem with them being publicly shamed for doing something so shameful.”
District Attorney Ben Creekmore referred all inquiries on the case to the FBI.
To contact Therese Apel, call (601) 961-7236 or follow @TRex21 on Twitter.