University of Oklahoma President David Boren has expelled, so far, two students involved in the vile, racist chants that have garnered national media attention. The problem, as pointed out by Eugene Volokh and David French, is that Boren’s actions are almost certainly unconstitutional.

In essence, the government is unable to punish speech, and this was “pure” speech in the sense that it did not involve actions or expressive conduct, except for in limited circumstances–obscenity or “fighting words” that might reasonably elicit a violent response, for example. Government cannot pick and choose particular points of view to disfavor, no matter how offensive or repellant.

The Court has upheld the KKK’s ability to speak and demonstrate. The Court has upheld the right to burn the American flag in the context of free expression. Whether we like it or not, protecting offensive speech secures all manner of controversial speech, including the kind on display in Oklahoma.

Of course, this has nothing to do with non-governmental actions. Organizations, like the national fraternity office in this case, can revoke local chapters for such speech. Social media might surround and hound these people for the rest of their days and not run afoul of the First Amendment. There may be social costs connected to speaking in such terms, but those costs cannot come at the hands of government.

Kudos to Volokh and French for speaking out in favor of the Constitution in the face of political unpopularity. By doing so, they affirm one of the principles at the heart of our founding. Even powerless and unpopular minorities, be they socially, racially, or religiously defined, retain their rights in the face of the government’s wrath.