‘Siouxper Drunk’ T-Shirts Constitutionally Protected; Critics Call for Expulsion Anyway

May 27, 2014

Earlier this month, a group of University of North Dakota (UND) students attending the off-campus event “Springfest” drew criticism for wearing shirts that read “Siouxper Drunk” and depicted a Native American drinking from a beer bong. While the First Amendment prohibits a public university like UND from imposing discipline on the students for the content of the T-shirts, some students and local Native American tribe members are calling for UND to punish students who wore the shirt. Meanwhile, news outlets are creating an air of suspense where none should exist, as UND is legally limited in how it can respond to the shirts.

The controversy comes after years of tension surrounding UND’s “Fighting Sioux” nickname, which was officially retired in 2012. UND President Robert O. Kelley condemned the shirts, saying they “demonstrated an unacceptable lack of sensitivity and a complete lack of respect for American Indians and all members of the community.” But although Kelley expressed a willingness to work on increasing sensitivity among UND community members, he said he would not ban the shirts:

“My dad was a librarian and my dad taught me at a very early age about the dangers of censorship,” he said. “I don’t want to tell you what to read, I don’t want to choose books for you, nor will I tell you what to wear.”

It is heartening to see Kelley recognize this as a free speech issue, staying true to his legal obligations while alluding to the moral and practical repercussions of censorship.

Unfortunately, though, others are disregarding the legal principles involved. Standing Rock Tribe Chairman David Archambault urged the university to punish those wearing the T-shirts in spite of the First Amendment’s protections:

“You feel it in your heart, not in your head, not in your mind,” he said. “You guys all feel it, that this is wrong.

“Expel them. Expel the students. Zero tolerance. If you do something like that, we won’t be meeting like this every other year.”

Archambault and those who agree with him should keep in mind that if public university officials and other government actors simply censored or otherwise punished anyone who shared messages that they “felt in their hearts” were wrong, the vast majority of debate on any issue of importance would be shut down entirely. To adopt a “zero tolerance” policy for ideas that an administrator believes is wrong is to effectively banish all dissent on campus, either directly through expulsion or indirectly through a chilling effect, as students will avoid discussing controversial matters altogether rather than risk severe punishment.

Remarkably, weeks after the incident, the question of whether the students will be punished is still being treated as an open one. After tribal leaders met with UND and North Dakota University System representatives last week, Campus Reform’s Katherine Timpf reported on the ongoing discussions about the issue. Timpf wrote that UND spokesman Peter Johnson “said there will be more meetings to discuss the issue, but federal law forbids him from saying whether or not the school would expel the students.” While UND is correct that it cannot violate students’ privacy rights by discussing possible disciplinary sanctions, the university would be within its rights to publicly reaffirm its unwillingness to punish any students for constitutionally protected speech.

Similarly, the New YorkDaily NewsMichael Walsh wrote of the controversy, “The University of North Dakota does not organize the Springfest bash … so it’s unclear whether the school will — or can — take disciplinary action against the students for the questionable apparel.” But regardless of whether UND organized the event or whether it took place on campus, the First Amendment analysis of the situation remains the same: The university may not take disciplinary action against the students simply because people were offended by the T-shirts.

Finally, writing for Last Real Indians, Ruth Hopkins recounts the history of Native Americans and alcohol abuse and asks, “Now tell me again, how is ‘Siouxper Drunk’ funny?” But it’s important to remember that for purposes of deciding whether those wearing the T-shirts should be expelled or punished by UND, a public institution, it doesn’t matter if “Siouxper Drunk” is funny or not. It matters if “Siouxper Drunk” is a true threat (it is not) or an incitement to imminent lawless action (it is not) or otherwise falls into a category of speech unprotected by the First Amendment (it does not). Insensitivity cannot be made illegal, and for good reason.

FIRE commends President Kelley for recognizing that censorship is not an acceptable solution to disagreement or feelings of offense. It is critically important that all members of the UND community understand that if UND were to punish these students, all students would be at risk for punishment for sharing controversial viewpoints while enrolled at UND.

Schools:  University of North Dakota