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Champion Briefs

January/February 2017
Lincoln-Douglas Brief

Resolved: Public colleges and


universities in the United States
ought not restrict any
constitutionally protected speech.

Copyright 2016-2017 by Champion Briefs, LLC


All rights reserved. No part of this work may be reproduced or transmitted in any
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Interpretation, Original Oratory, Extemp,


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The Evidence Standard


January/February 2017


The Evidence Standard



Speech and Debate provides a meaningful and educational experience to all who are involved.
We, as educators in the community, believe that it is our responsibility to provide resources that
uphold the foundation of the Speech and Debate activity. Champion Briefs, its employees,
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1. We will never falsify facts, opinions, dissents, or any other information.
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3. We will actively fight the dissemination of false information and will provide the
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6. We will actively contribute to students understanding of the world by using evidence
from a multitude of perspectives and schools of thought.
7. We will, within our power, assist the community as a whole in its mission to achieve the
goals and vision of this activity.

These seven statements, while seemingly simple, represent the complex notion of what it means
to advance students understanding of the world around them, as is the purpose of educators.

Champion Briefs

Letter from the Editor



January/February 2017

Letter from the Editor

To our readers,


The January/February topic consistently becomes my favorite. The countless
opportunities for debate into April if the TOC is your goal provide ample development
of students understanding for topical literature. As a college student living in post-election
America, free speech on campuses feels especially relevant. In this brief, we have carefully
curated arguments that ensure a holistic approach to the topic, invoking historical and legal
context as well as recent news regarding free speech. The affirmative arguments focus on
why unrestricted free speech is necessary for respecting autonomy, ensuring a productive
exchange of ideas, and fighting oppressive structures. The negative arguments center
largely on preventing the harms of unrestricted free speech from overly influencing society
in a negative way. These arguments are all quite nuanced but can be easily adapted. Its
your job to craft cases that best represent your personal values on this issue.

The hypothetical implications of this topic are vast but I strongly recommend that

you avoid abstracting completely from the real-world human impacts. Free speech
regulations, or lack thereof, can impact minorities, social groups, and other individuals in
ways you may not expect. I encourage that you dive into the topic literature to understand
the consequences of speech codes and restricted or unrestricted free speech on college
campuses. This will help you not only learn about the topic, but because many of you will
soon begin your career as a college students, the information will become directly relevant
in the immediate future. I strongly believe that the main implications of arguments can be
connected to our new post-election political climate, impacting you and those around you
quite personally. Understanding the implications of arguments on those it affects and on
society at large will help make debates more relevant and interesting. So, open your mind
to the important issues we face and lets get started on the January/February LincolnDouglas topic!


Champion Briefs




Mitali Mathur

Editor-in-Chief
Lincoln-Douglas Briefs

Table of Contents

January/February 2017

The Evidence Standard ............................................................................. 4



Letter from the Editor ............................................................................... 5

Topic Analyses .......................................................................................... 30
Topic Analysis by Bennett Eckert .......................................................................................... 31
Topic Analysis by Mitali Mathur ............................................................................................ 43
Topic Analysis by Felix Tan ..................................................................................................... 53
Alternative Argumentation by Bailey Rung ....................................................................... 63

Framework Analysis by Rory Jacobson ............................................ 73


Evidence for the Affirmative ................................................................ 80


Ban Free Speech Zones AC ................................................................................................................... 81
Free Speech Zones are overt restrictions of the first amendment based on menial
requirements and standards. .................................................................................................... 82
Hundreds of Universities are confining free speech now. This includes through
police and restriction to free speech zones. ......................................................................... 83
Prayer on campus has been limited via the use of free speech zones. ........................ 84
ACLU is in full support of free speech rights and is against gestures that opt for a
false solvency of free speech issues. ....................................................................................... 85
Silencing speech in the face of unconditional inclusion increases bureaucracy on
campuses and quenches debate before it starts. ................................................................ 86
Free speech zones are meant to relegate protest and politics to a tiny portion of
campus. ............................................................................................................................................. 87
Free speech zones bleed off campus, they have been adopted as a means to
constrain politics in the community at large. ...................................................................... 88
Free speech zones are meant to reduce dissent, this implies that the dissenters
view point is meant to be contained. ...................................................................................... 89

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Free speech zones chill open discourse outside of the zone by narrowly
constraining means of communication. ................................................................................ 90
A particular issue with free speech zones arises when they require prior
permission to use. ......................................................................................................................... 91
Free speech zones in essence null free speech because they make the
communication barrier impossible to cross. ....................................................................... 92
Free speech zones are a way to silence citizen dialogue and halt the spread of
ideas. .................................................................................................................................................. 93
Difficult interpretations of the First Amendment make free speech zones hard to
adjudicate. ....................................................................................................................................... 94


Eliminate Expenditure Limits Plan .................................................................................................. 95
Expenditure limits aren't substantially related to the school's purpose of
encouraging academic success. ................................................................................................ 96
A2 Expenditure Limits Bad: The school's educational interests outweigh the free
speech interests of student campaigners.............................................................................. 97
A2 Expenditure Limits Bad: Expenditure limits for student campaigns teach
students valuable campaigning and persuasion skills. .................................................... 98
A2 Expenditure Limits Bad: Unlimited spending in student government elections
means that student elections no longer become a learning experience. ................... 99
A2 Expenditure Limits Bad: Unlimited spending in student campaigns undermines
accessibility for low-income students. Student government elections should be
based on thoughtful ideas, not money. ................................................................................ 100
A2 Expenditure Limits Bad: Ninth Circuit case proves--student government
expenditure limits do not violate free speech. .................................................................. 101
A2 Expenditure Limits Bad: Spending caps make the election process better for the
majority of students. .................................................................................................................. 102


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January/February 2017



Fighting Oppressive Structures AC ................................................................................................. 103
Free Speech on college campuses is key to challenging US imperialism.................. 104
Free Speech is key to checking oppressive power structures. .................................... 105
Restricting the speech of some is injustice and is oppressive. .................................... 106
Free speech is key to fight back against oppressive governmental tactics to combat
environmental legislation. ....................................................................................................... 107
Universities must be sites of democratic discourse to protect the humanities from
post neo-liberal assault. ............................................................................................................ 108
Violating free speech creates an imbalance in political power. .................................. 109
A2 Free Speech Encourages Minority Discourse: Hate speech undermines the
speech of targeted groups. ....................................................................................................... 110
A2 Free Speech Combats Imperialism: Violations of the First Amendment can be
justified to combat cultural imperialism. ........................................................................... 111
A2 Free Speech encourages activism: The Fear of Violence from Hateful
organizations needs to be reshaped. .................................................................................... 112
A2 Free Speech Reduces Violence: Universities must restrict some speech to
reduce violence placed on the oppressed. .......................................................................... 114
A2 Fighting Oppressive Structures AC: Universities must strike a balance between
absolute freedom of speech and allowing too much restriction- Some moderation
is key. ............................................................................................................................................... 116
A2 Free Speech Combats Racism: To combat racism, we must interrogate what
racism is not focus on free speech. ........................................................................................ 117
A2 Free Speech Combats Antisemitism: Some Restrictions to free speech are
needed to combat antisemitism on campuses. ................................................................. 118
A2 Taking away free speech reduces their effectiveness: Criminalizing descent
only increases their legitimacy. ............................................................................................. 119
A2 Free speech is valuable: Due to a lack of epistemic authority limiting free
speech is justified to curtail speech that is not welfare enhancing. ........................... 120
A2 Limiting Free speech harms democracy: Restricting free speech is beneficial for
improving democracy. ............................................................................................................... 121

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Students not administration should systematically reject capitalist tools of


furthering oppressive speech. ................................................................................................ 122
Black Lives Matter movements can employ free speech on college campuses to oust
oppressive forms of speech. .................................................................................................... 124
Universities silencing leftist movements employs repressive tolerance that
undermines dissent. ................................................................................................................... 125
Free speech is key to establish liberating tolerance which is key to having all
voices heard. ................................................................................................................................. 126
Liberating Tolerance is key for movements to emancipate democratic impetus. 127


Free Speech Autonomy AC ................................................................................................................. 128
A significant portion of millennials are in favor of certain free speech restrictions.
........................................................................................................................................................... 129
The ability to express is intricately connected to the concept of autonomy,
restrictions of freedom threaten freedom. ........................................................................ 130
The importance of free speech presupposes the protection of free speech even in
the face of harmful speech. ...................................................................................................... 131
Empirical examples (Valdosta State and University of Delaware) show how schools
crush conversation and thus free exchange of ideas before they even occur. ....... 132
A2 Autonomy AC: Majority of students want restrictions to exist on their campus in
regards to slurs, costumes, and other forms of free speech. ........................................ 133
ACLU affirms that defamation laws are ineffective. Speech codes dont help those in
oppressed positions. .................................................................................................................. 134
A law which denies an individual the expression of their views is not consistent
with the doctrine of autonomy. Autonomy is meant to protect to people generally.
........................................................................................................................................................... 135
Democratic legitimacy is dependent of the advancement of autonomy regardless of
the content of the speech because autonomy is dependent on the advancement of
the view. ......................................................................................................................................... 136

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The Supreme Court affirms the necessity of free speech to a functioning


democracy. .................................................................................................................................... 137
The market place of Ideas promoted by free speech is key to self governance. .... 138
Free speech is necessary for the moral agency of people. It allows people the
ability to express their thoughts which is a hallmark of agency. ................................ 139
Speech regulations have the potential to chill speech beyond their intentions. ... 140
Racial Justice coincides with free speech, free speech is about making thos in
power uncomfortable. ............................................................................................................... 141
The ability to express perspective (ie attitudes, traits, etc) is crucial to autonomy.
........................................................................................................................................................... 142
Narrative autonomy is linked to storytelling and is based on the ability to create
relations. ........................................................................................................................................ 143
Free Speech and Autonomy: inkers, Storytellers, and a Systemic Approach to
Speech. ............................................................................................................................................ 144
Free speech is extremely important in truth finding missions. It serves the basis of
society to circulate true ideas. ................................................................................................ 145
Autonomous humans are entitled to make their own choices whether rational or
not. .................................................................................................................................................... 146
Democracies must promote the inclusion of all voices to maintain their democratic
status. .............................................................................................................................................. 147
Freedom of expression is grounded in the concept of autonomy as one needs the
ability to express their own desires. ..................................................................................... 148
To achieve a cohesion of democracy and freedom of expression there must be
processes to encourage the formulation of opinions. ..................................................... 149
Deliberation is necessary for the search for a common good in a democracy. ...... 150
Self-reflection in a democracy holds value if it holds value for the greater society.
........................................................................................................................................................... 151
Open dialogue allows people to come to a place of mutual understanding. ........... 152
Censoring speech on campuses risks politically polarizing the speech on campus.
........................................................................................................................................................... 153

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A2 Autonomy AC: There is a high ambivalence of first amendment issues by high


school students. ........................................................................................................................... 154
College students find free speech issues incredibly important in regards to their
rights. .............................................................................................................................................. 155
The state's legitimacy depends on respect for equality--the state only respects
autonomy if it allows free speech in all circumstances. ................................................. 156
Free Speech is essential to personal dignity and autonomy Protecting
communication is the way to ensure agency. .................................................................... 157
The preservation of Free Speech is net beneficial in both a deontological, and
consequentialist framework. .................................................................................................. 158


Kant AC ..................................................................................................................................................... 159
Freedom requires public use of one's reason--that's best achieved through
freedom of speech. ...................................................................................................................... 160
Freedom of speech is fundamental to the protection of individual rights. ............. 161
Restrictions on free speech can't be universalized. ........................................................ 162
Free speech is necessary to cultivate our reason. ............................................................ 163

Legalism AC ............................................................................................................................................ 164
International law negates. ....................................................................................................... 165
A2 Hate Speech: Recent SCOTUS cases allow the limitation of some forms of hate
speech that incite violence, such as cross-burning. If it is intimidation or incites
violence, it is not constitutionally protected. .................................................................... 166
John Doe v University of Michigan ruled that despite the harms free speech is
paramount. .................................................................................................................................... 168
The only exceptions to the First Amendment are fighting words-hate speech is
protected. ....................................................................................................................................... 169
Any legal restrictions on libel hate speech are not coherent legal standards. ....... 170
A2 Legalism AC: Hostile Environment laws exist that protect people from bigoted
speech in places like colleges. ................................................................................................. 171

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A2 Legalism AC: Supreme Court doesnt have an absolutist approach to speech


issues. Numerous objections to free speech have been affirmed by the Supreme
Court. ............................................................................................................................................... 172
The Supreme Court affirms the necessity of free speech to a functioning
democracy. .................................................................................................................................... 173
The Supreme Court affirmed the unique importance of free speech in schools as a
means to promote the market place of ideas. ................................................................... 174
Though the Supreme court says that Free Speech applies with less force at
universities it still affirms its importance. ......................................................................... 175
There is a laundry list of cases supporting the idea that state colleges and
universities are not enclaves immune from the sweep of the First Amendment..
........................................................................................................................................................... 176
Colleges carry the essence of a public forum. This is in concurrence with the Idea
that they ought to be a marketplace of ideas- Supreme Court Affirms. .................... 177
A2 Legalism AC: The United States is alone in its determined protection of free
speech. ............................................................................................................................................ 178
The 1st amendment creates a standard, not a defined rule. However in the context
of enforcement rules and standards are interchangeable. ........................................... 179
The 1st amendment creates a standard, not a defined rule. However in the context
of enforcement rules and standards are interchangeable. ........................................... 180
Freedom of speech is very important, hate speech has been protected time and
time again. ..................................................................................................................................... 181


Marketplace of Ideas AC ..................................................................................................................... 182
Colleges have historically been sites of open debate--this is key to diversity of
thought and expanding people. .............................................................................................. 183
Speech restrictions are on the rise on college campuses. ............................................. 184
Limitations on speech on college campuses are antithetical to the progression of
ideas. ................................................................................................................................................ 185

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Limit on campus speech start us down a slippery slope which implicates the First
Amendment more broadly. ...................................................................................................... 186
The First Amendment embodies the philosophy of the marketplace of ideas. ...... 187
Colleges should be a marketplace of ideas. ........................................................................ 188
Speech codes undermine exploratory thinking. ............................................................... 189
Free speech is the freedom that allows schools to function in the first place. Entire
campuses should be free speech zones. .............................................................................. 190
Speech codes undermine freedom of dissent on campuses. That freedom is
essential to the marketplace of ideas. .................................................................................. 191
Freedom of dissent is essential to the dissemination of ideas. ................................... 192
Colleges are a marketplace of ideas. ..................................................................................... 193
Regulating speech on campuses would deviate from campuses' tradition of being
marketplaces of ideas. ............................................................................................................... 194
First Amendment rights shouldn't be different for colleges. ....................................... 195
Colleges must broadly protect First Amendment rights within the academic
community. .................................................................................................................................... 196
College campuses are a marketplace of ideas--free speech is vital. ........................... 197
Suppressing free speech on college campuses undermines the creative inquiry
which college campuses aspire to. ........................................................................................ 198
Speech restrictions are justified for primary and secondary schools, but not for
mature students in higher education. .................................................................................. 199
College campuses provide an open forum appropriate for the interchange of ideas.
........................................................................................................................................................... 200
Restricting free speech on college campuses produces a chilling effect on academic
freedom. ......................................................................................................................................... 201
Speech restrictions would have a chilling effect--that undermines the marketplace
of ideas. ........................................................................................................................................... 202
The only way colleges and universities will maintain their status as marketplaces
of ideas is if they don't restrict constitutionally protected speech. ........................... 203
Free speech is grounded in the marketplace of ideas. ................................................... 204

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Free speech restrictions undermine the marketplace of ideas. .................................. 205


Curtailing freedom of speech on college campuses produces a dangerous
precedent. ...................................................................................................................................... 206
Free speech is indivisible--if anyone is denied it, all of us are. .................................... 207
A2 Aff Free Speech Conceptions: The aff relies on a value-neutral conception of free
speech--this is flawed. ............................................................................................................... 208
A2 Marketplace of Ideas AC: Private influences--like the Koch brothers-undermine the marketplace of ideas on college campuses. ......................................... 209
A2 Marketplace of Ideas AC: In a marketplace, there are inferior and superior
products. Similarly, colleges should assign different values to speech. ................... 210
A2 Marketplace of Ideas AC: Allowing bigoted speech doesn't contribute to our
enlightenment in a "marketplace of ideas. ....................................................................... 211
A2 Marketplace of Ideas AC: The "marketplace of ideas" is a cheap excuse for
bigotry. ............................................................................................................................................ 212
A2 Marketplace of Ideas AC:: Private actors like the Koch brothers have far more
stifling influence on open dialogue than any college administrator does. .............. 213
Colleges must be a marketplace of ideas--without free and open inquiry, a
university ceases to be a university. ..................................................................................... 214
Campus speech restrictions undermine America's civic life writ large. .................. 215
Progress depends on free and open dialogue in a marketplace of ideas. ................ 216
College speech restrictions threaten the fabric of a free and democratic society.217
Colleges shouldn't shield students from uncomfortable ideas or offensive things.
Otherwise freedom of expression is seriously undermined. ....................................... 218


Neoliberalism/Wendy Brown AC .................................................................................................... 219
Focus on language and speech as a space for reducing modes of violence destroys
hard fought for coalitional politics. ....................................................................................... 220
Focus on individualized notions of pain and aggrievement through forms of
representation recreates a form of neoliberalism, masking social inequity. ......... 222

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A2 Butler Resistance through Resignification: Butler offers no blueprint for


resistance, making her strategy impossible to guide liberatory action. .................. 224
A2 Butler Injury Leads to Resignification: Resignification is not a result of injury,
but different radical social and political movements. .................................................... 226
Positing some aspect of a liberatory discourse as an essential truth reifies the
regulatory structure of the law to create subordination. .............................................. 227
Hate speech suppression strategies obscure responsibility, focusing on individual
psychological states instead of its ties to a specific history as a performative
utterance. ....................................................................................................................................... 229
A2 Speech Wounds: Hate speech interpellates a certain subject into being but it is a
messy process which opens up a space for agency, transgression, and
resignification. ............................................................................................................................. 231
A2 Butler: The context of power in which speech arises need not be static in order
to injure. ......................................................................................................................................... 233
A2 Butler: To determine whether or not speech has the power to injure requires
an analysis of the empirical reality of particular social contexts. Thus, prefer the
neg's empirical studies over the aff's armchair philosophy. ........................................ 234
A2 Neoliberalism AC: Punishing Individual Obscures Larger Context. Legal hate
speech regulation punishes not just the individual, but making an utterance that
perpetuates a particular social context of subordination. ............................................ 236
A2 Butler "Misfires" Argument: When speech fails to injure, it is not accidental.
Rather, it is in direct relation to socially constructed power relations. ................... 237
Allowing the judicial system to define which speech is injurious allows the
judiciary to enact a particular violence of its own through the ability to interpret
protected and unprotected speech. ...................................................................................... 238
Hate speech prosecution ignores the violence inherent to the judicial decision
which allows an arbitrary exertion of power to define injurious acts. ..................... 239
Arguing that words can wound obscures the power that works throughout subjectformation, specifically normalizing state power as a neutral apparatus rather than
a violent one. ................................................................................................................................. 241

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Injurious words receive their power within a context of iterability and


citationality, which complicates the notion of accountability. Rather than a
singular act, injurious words rely on multiple acts and interpretations. ................ 244
A2 Neoliberalism: Current Free Speech Rules privilege the powerful and rely on a
neoliberal subject of the law. .................................................................................................. 246
Eliminating certain forms of language to create safer spaces reconstitutes the
subject in that injury recreating victimization. ................................................................ 247
The language of leftist censors have been co-opted by the right to ban political and
subversive art, preventing aesthetic liberation strategies. .......................................... 249
Leftist censorship has been co-opted by the right to ban forms of subversive
political speech, foreclosing potential liberatory art forms. ........................................ 250
Deconstructive proves that "intent" is never a discernable device to evaluate the
"good" or "bad" forms of speech. Political art, as a result will suffer. ....................... 251
The subversive strategy of speech that hate speech codes will censor speech that
can be appropriated as a means for self-protection. ...................................................... 252
Subversive speech practices are also the most accessible to those who have been
disempowered. ............................................................................................................................. 253


Slippery Slope AC .................................................................................................................................. 254
It is our moral imperative to uphold freedom of speech Bans create racial
discrimination and force compliance with US views on international relations. . 255
The institution of speech restrictions stifles social change and damages the
entirety of American Democracy. .......................................................................................... 257
Even when Speech equality is difficult, Criticisms generated through Free Speech
can correct those broader institutions through change. ............................................... 258
Despite any flaws, Free Speech is still inseparable from every successful social
movement that was critical to progressive change. ........................................................ 259
A2 Safe Space AC: Free Speech zones are insufficiently sized and used to be
effective Inconvenient time frame for reservation ensures they are underused.
........................................................................................................................................................... 260

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Modern Campus Anti-Privacy ethics are based on a fear of constructed threats of


terror Forcing students to choose security and construe expressive rights as
obsolete. ......................................................................................................................................... 261
Broad legislation of hate speech fails and normalizes racismit makes intolerance
synonymous with indicts of the state and larger government institutions. ........... 262
Constitutional Free Speech is currently being threatened on campuses, absent
sufficient resistance. .................................................................................................................. 263
Free Speech changes traditional impact calculusdemanding its protection is
consequential and deontological. .......................................................................................... 264
Free Speech mitigation policies are ineffective and spillover to widespread
academic harm. ............................................................................................................................ 265
A2 Spillover AC: Free speech on campus is not reconcilable with equality they are
mutually exclusive. ..................................................................................................................... 266
A2 Spillover AC: TURN Failure to punish and restrict hate speech results in
unequal education and a degradation of the 14th amendment. ................................. 267
A2 Spillover AC: Current Constitutional law is a horrific system for protecting
individual well being and ultimately culminates in hostile school experiences. .. 268
Purposefully provoking Hate Speech is not constitutionally protected, and does not
fall under the first amendment. ............................................................................................. 269
Speech that seeks to tear society apart, must be not be extended First Amendment
protections, as other rights outweigh. ................................................................................. 270
Campus speech restrictions spills over to surveillance and informant policies to
further censor students. ........................................................................................................... 271
Attempts to define and censor radical speech leads to racial profiling and
conformity with traditional values. ...................................................................................... 272
Every Free Speech concession countsGiving censorship moral legitimacy allows
the government to coopt the moral high ground for more right erosion. ............... 273
Now is the tipping point for Enlightenment ideals a failure to protect will spill
over to a broader collapse. ....................................................................................................... 274

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A2 Reverse Enforcement 2. Administrators have an interest in not reverse


enforcing hate speech rules. .................................................................................................... 275
AFF: Restrictions on hate speech sap energy from meaningful efforts to critique
racist views. ................................................................................................................................... 276
Hate speech regulations are an attempt to legislate and coerce virtue. .................. 277
Universities cannot inculcate virtue, it is not part of their form. ............................... 278
Coercing virtues through the university is specifically bound to fail, because it
refuses a true acknowledgement of social responsibility. ............................................ 279
Public institutions can never coerce individuals in order to inculcate virtue. ...... 280
A2 Racism: A firm criticism of hate speech on the individual level glosses over
institutional racismone shot fix policies simply allow that to continue. ............... 281
A2 Hate DA Solvency: Hate speech is so difficult to track and prosecute, that it is
rarely pursued to the end. ........................................................................................................ 282

Evidence for the Negative ................................................................... 283


Balancing Test NC ................................................................................................................................ 284
Free speech is politicized--it has no natural content. That means it'll get co-opted
to serve ends contrary to the affirmative's values. .......................................................... 285
Free speech is not valuable in and of itself--it depends on some ultimate purpose
for its value. ................................................................................................................................... 286
Free speech can't be intrinsically valuable--it relies on an ulterior purpose--sooner
or later we'll have to restrict forms of speech that undermine said purpose. ....... 287
Colleges and universities have the right to restrict speech to achieve their
substantive purposes. ................................................................................................................ 288
Colleges and universities don't exist independently of any purpose--it's within
their rights to preserve their basic tenets and restrict speech. .................................. 289
Limitations are necessary to give speech value in the first place. .............................. 290
The Aff relies on the fiction of harmless speech. .............................................................. 291
Free speech is politicized. ........................................................................................................ 292

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Appeals to the First Amendment aren't inherently wrong, but the First Amendment
is not always the appropriate reference point. ................................................................. 293
First Amendment jurisprudence is inherently self-defeating. This doesn't mean
speech is never valuable, but that we can't insulate speech from risk by expecting
it to be safeguarded constitutionally. ................................................................................... 294
Free speech is conceptually impossible--ideological constraints are constitutive of
speech. ............................................................................................................................................ 295
Universities have the right to restrict speech--students can always choose colleges
with more speech protections. ............................................................................................... 296
College students don't get their education through free and open debate--they get
it from teachers who control the content--means pedagogical ends precede speech.
........................................................................................................................................................... 297
Speech codes are key to treating college students as they are: children. ................ 298
Free speech isn't absolute--it necessitates a balancing test. ........................................ 299


Ban Hate Speech CP ............................................................................................................................. 300
A2 Hate Speech DA: Prohibition of Hate Speech increases the underlying attitudes
by increasing the haters sense of exclusion. ...................................................................... 301
A2 Legal prohibitions of hate speech ruin platforms to fight hate speech from. .. 302
A2 Ban Hate Speech CP- Bans force hate speech underground, undermines
coalitions against racist attitudes. ......................................................................................... 303
Banning Hate Speech only makes sense in context of how it affects others in
society. ............................................................................................................................................ 304
A2 Hate Speech CP: Majority of People dont believe in speech prohibitions. ....... 305
US is behind other countries on limiting hate speech. International contracts also
support it. ....................................................................................................................................... 306
Majority of college students believe hateful speech should be limited. ................... 307
Speaking up isnt enough to change actions, counter speech is futile in the case of
deeply seeded hateful attitudes. ............................................................................................ 308

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Majority of schools maintain restrictive speech policies including University of


California schools which are restricted by state law. ..................................................... 309
Banning of free speech zones can be done on a state level. Missouri empirically
proves, passed with overwhelming support. ..................................................................... 310
A2 Ban Hate Speech CP- It is perceived that campuses are unsafe to hold unpopular
views on. ......................................................................................................................................... 311
Hate speech and actions are rampant on college campuses, anti semetic and title IX
issues show. ................................................................................................................................... 312
Regulating hate speech isnt about censorship but about ensuring equality of
education. ...................................................................................................................................... 313
Calls to defend free speech are akin to cries to defend the existing power relations
in the status quo. ......................................................................................................................... 314


Critical Race Theory NC ...................................................................................................................... 316
A2 More Discourse Remedies: Remedies that contain a more speech aspect are
ineffective deterrents to action. ............................................................................................. 317
A2 Harmlessly blow off steam: The connection between hate speech and violent
action is undeniable, language has material and concrete effects. ............................ 318
A2 Reverse Enforcement: The empirical evidence of using hate speech codes
against marginalized groups is lacking. In fact, most of the regulation of hate
speech prevents victimization. ............................................................................................... 320
A2 Free Speech Helps Marginalized Groups: The history of the application of the
First Amendment and its doctrinal exceptions proves that the first amendment has
long been a tool that those with power benefit from. ..................................................... 321
A2 More Speech is Key: More speech is often unsafe for the victim of the recipient
of hate speech, making the possibility for education impossible. .............................. 323
A2 Hate speech distracts from "real" oppression: Language constructs reality, so
hate speech codes are an effective way to dissociate PoC from harmful stereotypes
that attack their personhood. ................................................................................................. 324
Hate speech codes are effective--other Western democracies prove. ...................... 325

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A2 Self-Victimization: Hate speech codes provide another avenue of recourse


which allows marginalized groups to better take control of their destinies rather
than being passive and accepting racist abuse. ................................................................ 326
A2 Classist objection. ................................................................................................................. 327
A2 Censorship: Hate speech rules are not a form of censorship and pose no more
danger than other constitutional restrictions of speech. .............................................. 328
A2 Unnecessary: Racism continues to exist, hate speech is one of those forms. This
is no more invasive than other civil rights remedies. ..................................................... 330
A2 Slippery Slope: There is no empirical evidence that a slippery slope will occur-empirics overwhelmingly flow neg. ...................................................................................... 331
A2 Reverse Enforcement: Administrators have an interest in not reverse enforcing
hate speech rules. ........................................................................................................................ 332
A2 CRT: More speech is a sufficient response, and it usually occurs within highly
political demonstrations and assembly prompting helpful dialogue. ...................... 333
A2 CRT 2. "More speech" solution is often a powerful tool for spurring social
change in communities. ............................................................................................................ 334


Hate Speech DA ...................................................................................................................................... 335
Anti-Semitism is at a decade long high on campuses, and is growing resulting in
vicious physical attacks and glorifying murder. ............................................................... 336
Hate speech promotes violence by encouraging a culture of the other. ................... 337
The tone hate speech carries makes it inherently harmful based on the intent to
use it. ............................................................................................................................................... 338
Hate speech can be a way to silence those you wish to harm. ...................................... 339
A2 Hate speech DA: Free speech, even when harmful serves a purpose. The
banning of one can spill over to harm others. ................................................................... 340
A2 Hate Speech DA:There have been zero legal applications of fighting words to
hate speech meaning that hate speech is currently protected by the Supreme
Court. ............................................................................................................................................... 341

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A2 Hate Speech DA: Symbols of hate are protected by the constitution. This
includes flags and clothes as long as it is not damaging someone elses property.
........................................................................................................................................................... 342
Governmental obligations are to ensure a respectful culture, hate speech harms
respect. ........................................................................................................................................... 343
Western politics has a history that supports the obligation to protect those from
harms like the ones implicated in hate speech. ................................................................ 344
Minority students are not enriched by opposing opinions when those opinions are
hate speech. ................................................................................................................................... 345
Hate speech is an assault of the 4th Amendment. ............................................................ 346
Anti-Semitic hate speech is largely present today, particularly on college
campuses. ....................................................................................................................................... 347
Hate speech and fighting words are synonymous, both are meant to cause harm
and incite a reaction. .................................................................................................................. 348
The internet has super charged hate speech on college campuses, making it more
easily spread. ................................................................................................................................ 349
Allowing hate speech to persist infringes on the rights of faculty and students on
campus, causing daily fear. ...................................................................................................... 350
Allowing hate speech to persist infringes on the rights of faculty and students on
campus, causing daily fear. ...................................................................................................... 351
Hate speech is highly prevalent and under reported on college campuses. ........... 352
Hate speech lead to a myriad of negative effects which harm the students
education. ...................................................................................................................................... 353
Internet has proliferated hate speech on college campuses, empirics prove. ....... 354
Hate speech is statistically very prevalent on college campuses. ............................... 355
Anti-Muslim rhetoric on the internet linked to hate crimes in real life. .................. 356
Anti-Muslim rhetoric on the internet linked to hate crimes in real life. .................. 357
Hate speech has been emboldened on college campuses ever since Trumps victory.
........................................................................................................................................................... 358

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Hate Crimes are in the high hundreds on college campuses (and these are only the
federally repored ones). The most common include graffiti, assault, and
intimidation. ................................................................................................................................. 359
Race is nearly always the motivating factor for hate crimes on college campuses.
........................................................................................................................................................... 360
The US is behind on regulating hate speech per international codes. ...................... 361
Silencing certain speech on campus turns the campus into a political showdown
instead of a place of education and debate. ....................................................................... 362
Hate speech is intrinsically tied to the harm and devaluation of others. ................ 363
Epithets draw on historically sensitive stereotypes that can elicit emotional or
mental distress. ............................................................................................................................ 364
Hate speech can cause long term harm-even chills victims own speech. ................ 365
The damage by hate speech has significant harms in relation to dignity. ............... 366
Universities are particularly bad place to harbor hate speech given the transition
state students are in. .................................................................................................................. 367
Hate speech is the intersection of free speech and equality rights. ........................... 368
Majority of students want open learning environments and bans on hate speech
and slurs. ........................................................................................................................................ 369
AFF: Free speech empowers minorities--it shouldn't be restricted. ......................... 370
A2 Hate Speech DA: Hate speech doesn't contract others' formal autonomy,
whereas speech restrictions do violate formal autonomy. ........................................... 371
A2 Hate Speech DA: Neg burden is to prove that restrictions on hate speech will be
enforced effectively. ................................................................................................................... 372
A2 Hate Speech DA: Hate speech regulations are ineffective. ...................................... 373
A2 Hate Speech DA: Hate speech regulations could result in more racism longterm. ................................................................................................................................................ 374
A2 Hate Speech DA: Empirics are key. .................................................................................. 375
The normalization of hate speech within culture paints certain individuals as outgroups that can justify further oppressive policies. Nazi Germany proves. ............ 376

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A2 Couldn't possibly happen to American Democracy: Your claims are empirically


false- hate speech has justified a long history of land grabs and displacement of
Native Americans because of the belief conveyed through speech that they were
subhuman. ..................................................................................................................................... 378
Hate speech desensitizes society to atrocities, justifying hate crimes and further
acts of discrimination. ............................................................................................................... 380
Hate speech is inconsistent with democracy. .................................................................... 382
A2 Hate Speech DA: Restrictions on hate speech will sap important energy from
actually critiquing racist views. ............................................................................................. 384
A2 Hate Speech DA: We should still seek political correctness, even if we reject
legal prohibitions of hate speech. .......................................................................................... 385
A2 Hate Speech DA: More effective opposition to racism will come from social
practices, not legal prohibitions. ........................................................................................... 386
A2 Hate Speech DA: Hate speech prohibitions cause racism to go underground-that reduces the effectiveness and likelihood of opposition to racism. ................... 387
A2 Hate Speech DA: Speech prohibitions cause racist backlash. ................................ 388
A2 Hate Speech DA: Prohibiting the expression of values--even offensive ones-undermines democratic, non-violent resolution to conflicts. ...................................... 389
A2 Hate Speech DA: Prohibitions on hate speech divert police energy from
addressing the underlying causes of racism. ..................................................................... 390
A2 Hate Speech DA: Prohibiting hate speech leads to a slippery slope. ................... 391
A2 Hate Speech DA: Regulations on hate speech will have an inevitable chilling
effect on valuable speech. ......................................................................................................... 392
A2 Hate Speech DA: We should err on the side of liberty over suppression. .......... 393
A2 Hate Speech Link: Speech designed to create violence is outside of First
Amendment protections, and is punishable. ..................................................................... 394
A2 Hate Speech DA: Empirically, hate speech legislation creates victimization from
political correctness that fuels even more hate crimes. ................................................ 395
Hate Speech is dehumanizing and is easily distinguishable from other forms of free
expression. .................................................................................................................................... 396

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UNIQUENESS: Hate Speech and Crime associated with it, is at an all time high with
the election of Donald Trump. ................................................................................................ 397
Link: On campus speech restrictions are essential to mitigate oppressive
rhetorical and physical violence against marginalized groups taking that away
further entrenches oppression. ............................................................................................. 398
Impact: Unchecked Hate Speech inevitably leads to physical violence and attacks.
........................................................................................................................................................... 399
A2 They Can Protest Back: Protests on Race are not afforded the same protections
as white protests, and often end in physical violence and hate crimes. ................... 400
Link: The moderation of free speech by administration is essential to mitigate
compounding anti-semetic harassment on campuses. .................................................. 401
White supremacist groups are gearing up for verbal attacks of minority groups on
campuses across the US, causing a spillover to violence. .............................................. 402
Hate Speech is on the rise since Trumps election, as groups weaponized his
rhetoric across the US. ............................................................................................................... 403
A2 Women Hate Speech: The concept of gender justice. ............................................... 404
Hate groups are growing, and attackers are being emboldened to attack college
campuses more and more. ....................................................................................................... 405
Hate Speech on and off campuses are connected in rhetoric and violencefailure to
censor on campus leads to a spillover everywhere. ........................................................ 406
A2 Inclusion: Attempting to reconcile hate speech, leads to higher tuition spikes,
further burdening marginalized groups. ............................................................................ 407
A2 Hate Speech Leg is key: Hate Speech laws are subjective and entirely ineffective
banning phrases or arguments can be used by all political spectrums. ................ 408
A2 Laws Key: Hate Speech laws are subjective and entirely ineffective banning
phrases or arguments can be used by all political spectrums. .................................... 409
A2 Constitution: Restrictions are worth fighting forhate speech violates
educational rights and provokes violent attacks. ............................................................ 410
A2 Constitution: First Amendment protections do not extend to minority groups in
a way that equally protects their education Power is inherently imbalanced. .. 411

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A2 Does Not Lead to Violence: Over 10 percent of all hate crimes take place on
college campuses, and they are connected to hate speech. .......................................... 412
A2 Most Campuses Dont Have Hate Speech Codes: Hate Speech codes of conduct
are abundantly more restrictive than normal legislation requirements across the
US. ..................................................................................................................................................... 413
A2 Hate Speech leads to Violence: Hate Speech, specifically on campuses, never
spills over to violence towards those effective It actually happens to the speaker.
........................................................................................................................................................... 414
A2 Hate Speech Ban Solvency: Even if we could measure the subjective concept of
offense, it is impossible to protect it in a legislated framework. ................................ 415
A2 No Impact: There is an educational tradeoff Hate Speech is forcibly sponsored
through university funds, where it could otherwise be invested. .............................. 416
A2 Racism: Speech Codes entrench more subtle forms of racism while taking away
critical tools in identifying bigoted speech. ....................................................................... 417
A2 Racism: A focus on structural racism is mutually exclusive from individual
speech codes Allowing ourselves to get bogged down in free speech ensures
racism continues unfettered. .................................................................................................. 418
A2 Racism: Free speech is able to solve back for racist behavior individuals
should be socially punished instead of silenced before they speak for their racism.
........................................................................................................................................................... 419
A2 Racism: The defense of racism is a societal problem Pushing it under the rug
simply holds back a complete criticism of white fascist defense. ............................... 420


Habermas NC ......................................................................................................................................... 421
Hate speech preempts the ability for agents to be in an equal position discursively.
Rather than mutual respect, it confers a status of sub-humanity enhanced by the
powerless position of marginalized groups within society. ......................................... 422
A2 Marketplace of ideas: Racism acts at the level of the unconscious distorting the
marketplace of ideas, creating a process defect. .............................................................. 424

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Power works through our linguistic tools and categories. Those who inhabit
subordinate positions effectively become powerless and unable to participate in
the marketplace of ideas. ......................................................................................................... 426
Racist speech devalues the speech of other participants in the discourse that exist
on the margins of society. ......................................................................................................... 427
A2 Marketplace of ideas: Racist speech decreases the amount of speech that
reaches the market. .................................................................................................................... 428
Hate speech is a performative utterance that reformulates the speakers' positions
on a continuum of power. ......................................................................................................... 429
A2 Hinders communication: Racist epithets are not a form of genuine speaking,
meaning that hate speech regulation does not violate the communicative
processes at the center of the First amendment. ............................................................. 430
Hate speech prevents the ability to reach mutual recognition and public
consensus. Instead, it invites less discourse. ..................................................................... 431
A2 Habermas: Any conception of the good life or stance of morality in Habermas is
essentially non-normative, which mean it can never provide a complete
prohibition on any particular content of speech. ............................................................. 433
A2 Habermas 2. Habermas concedes that inequality in distribution of resources
and knowledge is inevitable, meaning limitations of hate speech can't be justified
under his approach. .................................................................................................................... 434
Nussbaum's capabilities approach provides a democratic justification for free
speech but a reciprocal limitation that free speech ought not violate the
capabilities of others, justifying regulation of hate speech. ......................................... 435
A2 Imposes normative conceptions onto discourse: This is simply not true- hate
speech imperils the normative dimension of discourses. ............................................. 437


Safe Space NC ......................................................................................................................................... 438
A2 Safe Spaces Improve students ability to create change. ......................................... 439
Safe Space NC TURN: Contradictory ideas are key to reimagining educative safety.
........................................................................................................................................................... 440

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Safe Space NC TURN: The discourse of the powerful is necessary for new narratives
to emerge. ...................................................................................................................................... 441
A2 Safe Spaces protect students from harassment. ......................................................... 442
Safe Space NC TURN: Safe Spaces render experiences of other students invisible.
........................................................................................................................................................... 443
A2 Safe Spaces solve harassment- Safe Spaces give the harassers safe spaces where
by fixing the root problems becomes impossible. ........................................................... 444
A2 Safe Spaces benefit LGBTQ people: Safe spaces otherize GLBTQ people instilling
fear in the dominant- Only prolonged discomfort can create greater acceptance.
........................................................................................................................................................... 445
A2 Safe Space Solvency: Safe Spaces fail to benefit those who truly need them. ... 446
Safe spaces instill democratic values that are key to positive change. ..................... 447
A2 Safe Spaces are key to change: Classroom civility is whats needed not safe
spaces. ............................................................................................................................................. 448
A2 Safe Spaces Address LGBTQ issues: Safe spaces normalize the white
heteronormative order. ............................................................................................................ 449
A2 Safe Spaces Help Women: Safe Spaces cause a loss of generations capable of
helping rape victims. .................................................................................................................. 451
A2 Safe Spaces Improve Free Speech: Safe spaces represent the biggest threat to
free speech. .................................................................................................................................... 452
A2 Safe Spaces spur change: Safe spaces undermine our ability to effect change in
the world a total rejection is necessary to restore academic freedom. .................... 453
A2 Safe Spaces Bring People together: Safe Spaces stifle discussions and bring
people apart. ................................................................................................................................. 455
Safe Spaces are key for allowing people of color to combat microagressions--this is
empirically proven to increase retention. .......................................................................... 456
Safe Spaces are key to unlearning preconceptions and expand students ability to
question. ......................................................................................................................................... 457
Latino Safe spaces are key to improving graduation rates for Latinos and
improving identity understandings. ..................................................................................... 458

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Safe spaces dont prevent challenging discussions rather they allow students to
explore and reconseptualize new concepts. ...................................................................... 459
Safe Spaces are justified because hateful speech that they elevate doesnt deserve
protection. ..................................................................................................................................... 460
Safe Spaces require a restriction of free speech and allows a better exposing to
new ideas. ...................................................................................................................................... 461
Safe Spaces help students feel a sense of belonging. ....................................................... 462
Safe class rooms are key to the success of multicultural courses which allow
transformative learning. ........................................................................................................... 463
Safe multicultural classes confront stereotypes and motivate students to make
social change. ................................................................................................................................ 464

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Lincoln-Douglas Brief

Topic Analyses

Topic Analysis by Bennett Eckert



January/February 2017

Topic Analysis by Bennett Eckert



Resolved: Public Colleges and Universities in the United States ought not restrict any
constitutionally protected speech.
Introduction
Free speech on college campuses is an incredibly controversial issue. Safe spaces, free

speech zones, and controversial speakers at universities have all been subject to hot contestation.
The importance of schools is evident: college and university classrooms are, as Firmin
DeBrabander notes, a laboratory where controversial, sometimes incendiary ideas are aired.1
Campuses are viewed as a place where young people can develop into thinkers that will spark
social progress and make real change. For example, Henry Giroux (citing Henry Conant), argues
that higher education should create a class of American radicals, who could fight for equality,
favor public education, elevate human needs over property rights and challenge groups which
have attained too much power.2
In this topic analysis, Ill cover a few things. First, I will discuss what the topic actually
covers: what is within the purview of the topic, and what are topicality constraints that the
affirmative faces? Then, I will discuss the core affirmative positions in the literature and
potential negative objections. Finally, I will go over a few of the core negative arguments and
some affirmative responses to those.

Firmin DeBrabander, Do Guns Make Us Free? Democacy and the Armed Society (New Haven: Yale University
Press, 2015), 174.
2
Henry Giroux, Higher Education and the Promise of Insurgent Public Memory, Truthout, 3 Mar 2015,
http://www.truth-out.org/news/item/29396-higher-education-and-the-promise-of-insurgent-public-memory.

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What does the topic mean?
The topic has several phrases with ambiguous meaning. I will discuss what the topic means by
public colleges and universities, constitutionally protected speech, and any.
Public Colleges and Universities
There are two important parts of this phrase. First and foremost is that the topic is limited
to public colleges and universities. This clearly is just meant to exclude private schools.
However, it has some interesting impact on the topic: public universities are undeniably bound to
follow the First Amendment. The Foundation for Individual Rights in Education makes this
clear:
That the First Amendment applies on the public university campus is settled law.
Public universities have long occupied a special niche in the Supreme Courts First
Amendment jurisprudence. Indeed, the Court has held that First Amendment
protections on campus are necessary for the preservation of our democracy.3
This opens the debate up to more well-defined and one-sided constitutionality discussions. With
private universities, the answer may be less obvious. However, since the topic specifies public
universities, it seems obvious that the affirmative has the upper hand with respect to
constitutionality.
Second, colleges and universities are bare plurals. That is, they are plurals without
modifiers (other than public, in this case). Since the resolution has no specific context, some
might interpret these to be generic, meaning that they apply to kinds of things instead of
particulars. If this interpretation is correct, then the affirmative is not allowed to specify

State of the Law: Speech Codes, FIRE, accessed 2 Dec 2016, https://www.thefire.org/in-court/state-of-the-lawspeech-codes/.

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particular colleges or universities to defend. I wont go into this issue much further, but Jake
Nebel and Bob Overing have both written about topicality and plurals in debate resolutions
(Nebels article led to the argument now known as Nebel T).45
Constitutionally Protected Speech
This is potentially the most interesting topicality discussion on the topic. What constitutes
constitutionally protected speech is, of course, always changing as the Supreme Court makes
new rulings on the First Amendment. However, the core issue in the topic will be about hate
speech: is hate speech constitutionally protected? What is hate speech? Ill try to make a little
headway on these questions here.
First, fighting words and hate speech are distinct things. Fighting words are certainly
not protected by the constitution, as the ACLU notes:
The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New
Hampshire, that intimidating speech directed at a specific individual in a face-toface confrontation amounts to "fighting words," and that the person engaging in
such speech can be punished if "by their very utterance [the words] inflict injury or
tend to incite an immediate breach of the peace." 6
Hate speech, on the other hand, is far more controversial. Some, like CNNs Chris
Cuomo, think that hate speech is not covered by the First Amendment. However, there does not
seem to be much constitutional basis for this assertion. PolitiFact explains that hate speech on

Jake Nebel, Jake Nebel on Specifying Just Governments, VBriefly, 19 Dec 2014,
http://vbriefly.com/2014/12/19/jake-nebel-on-specifying-just-governments/.
5
Bob Overing, Topicality and Plans in LD: A Reply to Nebel, Premier Debate Today, 11 Dec 2014,
http://premierdebatetoday.com/2014/12/11/topicality-and-plans-in-ld-a-reply-to-nebel-by-bob-overing/.
6
Hate Speech on Campus, ACLU, accessed 2 Dec 2016, https://www.aclu.org/other/hate-speech-campus.

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its own -- such as on a picket sign or a blog -- is not excluded from protection. 7 Either way,
both sides should be prepared to have this debate. Affirmatives should decide early on whether
or not they are willing to defend hate speech. If they are, they should have a defense of it; if not,
they should have an argument for why hate speech is not constitutionally protected free speech.
Similarly, the neg should be ready to go with an argument that the aff must defend hate speech
since it is constitutionally protected.
Any
This is potentially the most frustrating word in the topic. Merriam-Websters first
definition of it is:
1: one or some indiscriminately of whatever kind:
a: one or another taken at random <ask any man you meet>
b: every used to indicate one selected without restriction <any child would
know that>8
It seems, then, that this any does mean something like every in this instance. However, that
would not mean that the resolution is saying that colleges could restrict some, but not every
instance of free speech. Rather, the topic intuitively seems to be saying that colleges cannot
restrict any free speech; there should be no restrictions on constitutionally protected speech.
The implication of this is obvious: plans are not topical. There also seems to be an
obvious argument for plans not being allowed on this topic regardless of whether the word any
was in the topic. If the affirmative were allowed to say colleges should not restrict some
specific instance of constitutionally protected speech, then they would pick absurd, unbeatable

7

Lauren Carroll, CNN's Chris Cuomo: First Amendment doesn't cover hate speech, PolitiFact, 7 May 2015,
http://www.politifact.com/punditfact/statements/2015/may/07/chris-cuomo/cnns-chris-cuomo-firstamendment-doesnt-cover-hate/.
8
Definition of Any, Merriam-Webster, accessed 2 Dec 2016, https://www.merriam-webster.com/dictionary/any.

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affs. For example, people would read plans like Public colleges and universities in the United
States ought not restrict students right to write papers on Kant. Or Colleges shouldnt restrict
students right to say racism is bad. All of these would, if the aff could specify one sort of
speech, be theoretically defensible plans. However, they are clearly terrible for debate: they
would force the negative into an awful position and give them no educational ground to debate
about. For this reason, I will focus my discussion in the next two sections on affirmatives that
defend the whole resolution.
Affirmative
In this section, Ill outline a few core affirmative positions and how they could interact
with potential negative arguments. As I mentioned above, the affirmative will have to decide
between defending hate speech as constitutionally protected speech or defending against a
topicality argument claiming that hate speech is constitutionally protected. Regardless of whether
they defend hate speech or not, though, these are a few viable, core of the literature affirmative
positions.
Freedom
The first, and potentially most obvious, affirmative on this topic is one that simply says
freedom of speech is inviolable. William Ruger defends this position, arguing that freedom of
speech is necessary to respect human rationality, autonomy, and dignity:
At its most fundamental level, free speech is our natural right to express ourselves,
consistent with the equal rights of others to do so. Protecting this right respects the
moral dignity of individuals as reasoning, autonomous beings with their own ideas,
beliefs and values. This means that speech should not be restricted, even when we
think it is wrong or dangerous. When we vociferously disagree with someone and

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willingly engage them in a dialogue, we actually reveal our deepest respect for their
dignity as reasoning beings.9
This position could fit within some sort of Kantian deontological framework.
Helga Varden, for example, describes a Kantian case for free speech:
Kant maintains that most ways in which a person uses words in his interactions
with others cannot be seen as involving wrongdoing from the point of view of right:
such things as merely communicating his thoughts do not constitute
wrongdoing because it is entirely up to them [the listeners] whether they want to
believe him or not (6: 238). The utterance of words in space and time does not
have the power to hinder anyone elses external freedom, including depriving him
of his means. Since words as such cannot exert physical power over people, it is
impossible to use them as a means of coercion against another.10
I strongly caution against reading this argument with a Kantian framework without fully
understanding it, though, as Varden also writes about Kant being used to condemn hate speech
and defamation. Even if this argument is not defended using a purely Kantian political
philosophy, though, it could be defended with a libertarian framework that has become popular
in recent years or even a constitutionality argument. The affirmative could just argue that we are
ethically obligated to follow the Constitution, and the Constitution obviously calls for protection
of constitutionally protected speech!
Framework-style positions like this tend to be successful in front of judges that are
sympathetic to evaluating framework over utilitarian/policy-style impacts or critical impacts.
Since it is January/February, my prediction is that these judges are more likely to be found at
Northeast tournaments like Harvard and Lexington.

9

William Ruger, Free Speech Is Central to Our Dignity as Humans, Time, 3 June 2016,
http://time.com/4355651/free-speech-human-dignity/.
10
Helga Varden, A Kantian Conception of Free Speech, in Freedom of Expression in a Diverse World, ed.
Deirdre Golash (New York: Springer, 2010), 42.

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There are two potential strategic disadvantages to a position like this, though. First, it
does not have a built-in defense against common negative arguments about hate speech and safe
spaces. Second, many frameworks like Kant and constitutionality are susceptible to critiques
about their historically racist legacies. Of course, it is possible to overcome both of these
difficulties, but they are definitely something that debaters should be thinking about when they
write the position.
Marketplace of Ideas
Another popular argument for free speech on college campuses is that social progress is
impossible without a marketplace of ideas. In this marketplace, any person would be able to
freely state and debate their opinions. William Ruger, for instance, defends this argument:
[P]ositive social changeas well as moral and scientific progressis more
difficult without the free flow of ideas that free speech allows. Repressive societies,
by squelching speech, impair peoples ability to improve those
societiesAmericans ability to confront the evil of slavery was set back in the
1830s and 40s Congress by its gag rule on debate of anti-slavery petitions.
Conversely, freer speech in the 1950s and 60s helped civil rights advocates bring
down Jim Crow.11
This argument could be spun in many interesting ways. For example, the affirmative
could use the examples of slavery abolition and the civil rights movement could only be broken
down with the help of free speech on college campuses. As I mentioned in the introduction,
Henry Giroux and Firmin DeBrabander write about the importance of college campuses for
starting movements. This affirmative, then, likely goes best with some sort of consequentialist
framework. This could either be a stock utilitarian one or a structural violence-type framework

11

William Ruger, Free Speech Is Central to Our Dignity as Humans, Time, 3 June 2016,
http://time.com/4355651/free-speech-human-dignity/.

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that has become incredibly popular in recent years (which argues we should minimize
oppression).
This aff also has some nice strategic merits. It has a good built-in response to a core neg
argument: hate speech. The ACLU argues that restrictions on hate speech on college campus
also will always restrict protests, and that laws protecting hate speech can also be used to drive
movements for civil rights:
[L]aws that defend free speech for bigots can be used to defend the rights of civil rights
workers, anti-war protesters, lesbian and gay activists and others fighting for justice. For
example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an
ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in
that case became the basis for the ACLU's successful defense of civil rights demonstrators
in the 1960s and '70s.12
This affirmative would be especially useful in front of judges who are sympathetic to
policy-style positions and positions about structural violence. In my experience, these judges are
common at tournaments like Harvard-Westlake, Emory, and Berkeley on the January/February
topic.
Negative
The nice thing about being negative on this topic (except for the longer speeches!) is that
the negative can win by proving a single counter-example or reading a PIC (plan inclusive
counterplan, which defends part but not all of the affirmative). As I noted above, this is because
the affirmative must defend that there shouldnt be any restrictions on constitutionally protected
speech on college campuses. Thus, if the negative simply proves that, for example, hate speech is


12

Hate Speech on Campus, ACLU, accessed 2 Dec 2016, https://www.aclu.org/other/hate-speech-campus.

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constitutionally protected and should be restricted, then they win. In this section, Ill discuss the
core counter-example in the literature: hate speech.
Hate Speech
It shouldnt be surprising that this is the core of negative ground on the topic. The most
contentious portion of the debate in the literature is over hate speech: should it be allowed on
college campuses? If it should be regulated, how do universities do so without chilling other
speech?
Several authors have defended limitations on hate speech on college campus. Charles
Lawrence, for example, wrote an article that prompted great debate over whether regulating hate
speech was an unacceptable form of censorship (Lawrence argued in favor of regulating hate
speech).13 The argument for regulating hate speech is intuitive: hate speech causes direct harm,
and regulating it would deter hate speech, ameliorating that harm. However, many, against
Lawrence, argue that regulation would do more harm than good. Overall, this argument seems to
be an empirical question, so both sides should be prepared to engage in an empirical debate
about the issue, as C. Edwin Baker notes:
Given these alternative empirical possibilities, the debate is not between idealistic
but uncaring liberal defenders of free speech and fierce opponents of the worst
forms of racism. Rather the pragmatic debate is about different empirical
predictions concerning the most effective strategy for opposing racism. Empirical
evidence of which scenario is most likely should be welcome. Maybe the evidence
exists, thought I do not know of it at a level where confidence on a particular
conclusion is warranted.14


13

Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, Duke Law Journal
(1990): 431-483.
14
C. Edwin Baker, Hate Speech and Incitement to Violence (Web, Columbia University School of Law, Spring
2009), 13.

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The negative could read this argument with a variety of different frameworks. One would
simply be an argument about the value of democratic deliberation. This could be drawn from the
works of Jean-Jacques Rousseau, Jurgen Habermas, Seyla Benhabib, or countless others, and
would argue that inclusion in democratic deliberation is a moral imperative: if speech excludes
someone, that justifies restricting it. John a. Powell makes this argument in the context of free
speech:
The marketplace of ideas cannot self-regulate so long as objections to lack of
participatory access are subsumed by claims that the liberty interest in expression
is primary to the equality interest in participatory access. A self-regulating
marketplace presupposes an equal starting line- an assumption that has never been
a reality in American political life.15
Another obvious framework for this position would be one based around
structural violence, which would argue that we should attempt to reduce oppression. If
hate speech is an act or manifestation of structural violence/oppression, then, we should
limit it.
The more framework-style version of this position (the one centered around democracy)
could be especially useful at January/February tournaments like Harvard and Lexington, where
many judges will be somewhat framework-focused. The structural violence version of this
argument could be more useful at tournaments like Berkeley, where the judges tend to be more
critical and policy-centered. Either way, this is a core negative argument that can be used to
interact with a litany of different affirmative arguments.


15

john a. powell, As Justice Requires/Permits: e Delimitation of Harmful Speech in a Democratic Society, Law &
Inequality 16, no. 97 (1999), 103.

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Good Luck!
Bennett Eckert
About Bennett Eckert
As a student at Greenhill, Bennett was a 3-time champion of Lincoln Douglas Debate at
the Texas Forensic Association State Tournament and the 2016 National Speech and Debate
Association's national champion. During the 2015-2016 school year, Bennett was one of the
most successful debaters on the national circuit winning the Glenbrooks, Apple Valley, St.
Marks, Meadows, the Greenhill Round Robin, and the Apple Valley Round Robin. He now
attends Northwestern University.

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Works Cited
Baker, C. Edwin. Hate Speech and Incitement to Violence. Web, Columbia University
School of Law, Spring 2009.
Carroll, Lauren. CNN's Chris Cuomo: First Amendment doesn't cover hate speech. PolitiFact.
7 May 2015. http://www.politifact.com/punditfact/statements/2015/may/07/chriscuomo/cnns-chris-cuomo-first-amendment-doesnt-cover-hate/.
DeBrabander, Firmin. Do Guns Make Us Free? Democacy and the Armed Society. New Haven:
Yale University Press, 2015. 174.
Definition of Any. Merriam-Webster. accessed 2 Dec 2016. https://www.merriamwebster.com/dictionary/any.
Giroux, Henry. Higher Education and the Promise of Insurgent Public Memory. Truthout. 3
Mar 2015. http://www.truth-out.org/news/item/29396-higher-education-and-the-promiseof-insurgent-public-memory.
Hate Speech on Campus. ACLU. accessed 2 Dec 2016. https://www.aclu.org/other/hatespeech-campus.
Lawrence III, Charles R. If He Hollers Let Him Go: Regulating Racist Speech on Campus.
Duke Law Journal (1990): 431-483.
Nebel, Jake. Jake Nebel on Specifying Just Governments. VBriefly. 19 Dec 2014.
http://vbriefly.com/2014/12/19/jake-nebel-on-specifying-just-governments/.
Overing, Bob. Topicality and Plans in LD: A Reply to Nebel. Premier Debate Today. 11 Dec
2014. http://premierdebatetoday.com/2014/12/11/topicality-and-plans-in-ld-a-reply-tonebel-by-bob-overing/.
powell, john a. As Justice Requires/Permits: The Delimitation of Harmful Speech in a
Democratic Society. Law & Inequality 16. no. 97 (1999). 97-151.
Ruger, William. Free Speech Is Central to Our Dignity as Humans. Time. 3 June 2016.
http://time.com/4355651/free-speech-human-dignity/.
Varden, Helga, A Kantian Conception of Free Speech, in Freedom of Expression in a Diverse
World, edited by Deirdre Golash. New York: Springer, 2010. 42.

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Topic Analysis by Mitali Mathur



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Topic Analysis by Mitali Mathur



Resolved: Public Colleges and Universities in the United States ought not restrict any
constitutionally protected speech.
Introduction
The January/February topic is always one of the most unique and, to some debaters, one

of the most important topics. There are many local tournaments on this topic and national circuit
tournaments that include Harvard Westlake (Octos bid), Berkley (Octos bid), Harvard (Octos
bid), Sunvitational (Quarters bid), and Emory (Octos bid). Harvard Westlake, Berkley, and
Emory tend to be more policy-oriented, while Harvard and Sunvitational tend to be more
philosophically oriented. Most tournaments on this topic are some of the last few qualifying
tournaments for the TOC, state, or district tournaments. The Jan/Feb topic is also the TOC and
NDCA topic. If the TOC is your goal, you will be living, breathing, and living by this topic
through April. Overall, since there are so many tournaments on this topic, its sure to be a fun
topic! Seize the time you have during winter break to do some good research, card-cutting, and
case-writing.
Background
This topic is very pertinent in our current political climate. In general, there is a big clash
in the literature about whether free speech should be restricted. On one side, people argue that
free speech should be an absolute right, and on the other, people argue that restrictions are
necessary to prevent harmful speech. Since this topic refers to colleges and universities in the
US, the topic presents a question of whether colleges should ensure unrestricted rights to speech
versus restricting speech so that students feel safe and comfortable. In the status quo, colleges

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and universities restrict free speech in various ways, such as when they create safe zones where
microaggressions are not allowed, or implementing policies where professors cant say certain
things or have to change their syllabi.16 Colleges often use speech codes, a university
implemented policy that prohibits the expression that would be protected by the First
Amendment in society at large.17 Speech codes have spread to more and more campuses given
the surge of political correctness culture.
When thinking about the topic, it is easy to jump to ideal conclusions regarding the nature
of free speech in the US. But given the new political climate, which was exacerbated during the
election, the impacts of speech are very clear. Debaters should ensure they remember who would
be affected by changes in speech rules: students and the public who speak on campuses. Putting
a face to the impact will help make the topic more real and will ensure that the lived experiences
of people with different identities can be heard and respected.
With that in mind, lets start with some definitions.
Public Colleges and Universities refer to institutions of higher education that are funded
by public means through the national or subnational government.18,19 In this resolution, it is
important to note that public colleges and universities are the actors this means that they are the
ones that implement speech policies, not the government. However, I do think that if some
debaters want to defend a national policy, they can argue that colleges and universities ought to
abide by a national policy, which would in turn remove restrictions on free speech. Additionally,
some debaters may parametricize specific colleges and universities but if you want to do that,

16

Nina Burleigh, "The Battle against 'Hate Speech' on College Campuses Gives Rise to a Generation that Hates
Speech," Newsweek, May 26, 2016
17
Foundation for Individual Rights in Education, "What are Speech Codes?"
18
The Legal Dictionary, Colleges and Universities.
19
Peterson's, "Public University vs. Private College," September 29, 2015

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be ready to debate OSPEC and/or Nebel T (the argument that colleges and universities are bare
plurals).20
Ought implies a moral obligation, and there are different definitions outlining whether it
means debaters should focus on implementing a policy or discussing the resolution on an abstract
level.
Restrict is defined as to limit the amount or range of (something); to prevent (someone)
from doing something; to allow (someone) to only have or do a particular thing.21
Any can be defined in two different ways, implying two different resolutional
interpretations. The first definitional approach defines any to indicate a person or thing that is
not particular or specific.22 This would mean that the aff cannot defend a plan that removes
restrictions on a particular type of free speech, but must defend removing every restriction on
free speech. The second definitional approach claims that any is used instead of some for
saying or asking whether there is a small amount of something or a small number of people or
things.23 This would mean that for the aff, colleges ought not restrict some types of free speech,
which means the aff can parametricize what types of speech that would be.
Constitutionally Protected Speech is the right, guaranteed by the First Amendment to the
U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.24
The key word is constitutionally. Constitutionally protected speech already implies certain
limitations defined by the Supreme Court: freedom of speech does not include the right to incite
actions that would harm others (Schenck v. United States), make or distribute obscene materials

20

Jake Nebel, "Jake Nebel on Specifying 'Just Governments,'" Vbriefly, December 19, 2014
Marriam Websters Dictionary, Restrict
22
Marriam Websters Dictionary, Any
23
MacMillion Dictionary, Any
24
The Legal Dictionary, Constitutionally protected speech.
21

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(Roth v. United States), burn draft cards (United States v. OBrien), etc. This means that
affirmatives that wish to remove a restriction speech must check that it isnt a restriction that
would be allowed under the constitution, or else the aff is the same as the status quo.
This topic is fundamentally about whether or not some limitations on constitutionally
protected speech are legitimate in colleges. Should college be a place where full speech thrives
and a marketplace of ideas can flourish, or a place with some restrictions that ensure the safety
and respect of students affected by unrestricted speech. There are many different interpretations
of the resolution that allow for different parametricizations or are important to keep in mind
while writing cases and topicality arguments.
Affirmative
Aff Strategy
There are a variety of affirmative strategies on this topic ranging from philosophical affs
to critical affs. I recommend that you begin constructing your aff case by broadly researching the
topic literature, and keeping in mind the core negative argument of hate speech. This will ensure
that you construct your aff with built-in answers, which will make your 1AR much easier. Below
are a few advantage areas Affs can cover.
Advantage areas
1] Freedom and Constitutionality: The most intuitive argument on this topic is an aff that
an unrestricted right to free speech is absolute, and restrictions violate that right. Greenwalt, for
example argues that free speech is intertwined with liberty.25 Debaters can read this type of an

25

Kent Greenawalt, "Free Speech Justifications," Columbia Law Review, Volume 89, Number 1, January 1989

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affirmative with a deontic framework or a constitutionality framework and argue that speech
codes violate the inviolable right of free speech individuals have.
2] Marketplace of Ideas: A different twist on the freedom case idea is to emphasize that
unrestricted free speech is necessary to include voices, and is the basis for democracy. Affs can
argue that restrictions on free speech create a chilling effect that disincentives people from
voicing their opinions since they are scared of violating a speech code, or dont know what
constitutes violating a speech code.26 Removing restrictions on free speech would create a
marketplace of ideas by including voices and promoting academic freedom.27 These affs could
also argue that the answer to hate speech, is more speech that inclusion is a necessary precursor
to resolving the tensions that created the need for a speech code.28 These affs would work well
with a democracy based framework and would be great for local tournaments.
3] Movements: This aff is very similar to the marketplace of ideas aff, but the impacts are
different. Instead of simply arguing that unrestricted free speech is good on principle for
including voices, a movements aff would argue that unrestricted free speech is necessary to fight
dominant power structures. I can see this aff being very popular as a soft-left aff with a
structural-violence based framework. This idea could also work well with more critical
frameworks and more specific issues like fighting capitalism, racism, and sexism.
4] Paternalism: Another interesting, potentially critical aff could argue that whenever
institutions have the ability to arbitrarily determine limitations on speech (the ability of colleges
to write speech codes), they exemplify paternalism by forcing particular views on people, which

26

Conor Friedersdorf, "The Glaring Evidence that Free Speech is Threatened on Campus," The Atlantic, March 4,
2016
27
James Leonard, "Killing with Kindness: Speech Codes in the American University," Ohio Northern University
Law Review, Volume 19, 1993
28
Charles R. Calleros, "Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and
Yun," Arizona State Law Journal, Volume 27, 1995

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could also lead to backlash.29 This could work well with slippery slope arguments that claim
when colleges have the power to violate one part of the Constitution, they could begin to violate
other parts as well.
Overall, there are a variety of different affirmative positions that can be read regardless of
your debate style.
Negative
Neg Strategy
There are a variety of different negative positions on this topic. I recommend that all
debaters have different types of cases in their arsenal to counter different affs as the topic
proceeds to ensure the best clash.
Negative Cases
Hate Speech NC: The biggest negative ground on this topic is to argue that speech codes
and restrictions on free speech are necessary to prevent hate speech. I can see this argument
being read with a structural-violence based framework that describes the oppressive nature of
hate speech and hate crimes sparked by unrestricted free speech. I also think this argument can
be run with a deliberation based framework to argue that hate speech excludes certain
populations from important discussions they have a right to participate in. This could be strategic
against affirmatives that argue more speech is the solution to bad speech since the negative
would claim being able to speak in the first place is a pre-requisite to the aff, and speech codes


29

James Leonard, "Killing with Kindness: Speech Codes in the American University," Ohio Northern University
Law Review, Volume 19, 1993

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allow that to occur.30 31 Every negative should have a version of a hate speech NC or write it as a
disadvantage.
Counterplans
There are plenty of Plan Inclusive Counterplans on this topic for affs that defend
completely unrestricted free speech. You can PIC out of a particular type of speech (ex: hate
speech) and argue that certain speech codes are necessary to resolve the harms in the aff. A
negative can also read a safe zones counterplan, which would allow for unrestricted free speech
everywhere except certain areas where people who feel antagonized go to seek haven and can
reflect in a facilitated dialogue where their views will be respected. A surge of these safe
spaces has occurred following the recent election.32
Disadvantages
The hate speech NC can be read as a disadvantage with impacts relating to bullying and
violence. These disadvantages simply need links about why hate speech will escalate into
tangible harms against oppressed groups. Another potential DA could argue that colleges ought
to adopt speech codes that exclude radical and extremist thought in order to prevent college
students from becoming involved with terrorist organizations.33


30

Owen M. Fiss, "Free Speech and Social Structure," Iowa Law Review, 1986
Susan J. Brison, "The Autonomy Defense of Free Speech," Ethics, Volume 108, Number 2, January 1998
32
Bradford Richardson, "'Safe Spaces' Balloon on College Campuses Following Donald Trump Win," The
Washington Times, November 10, 2016
33
Rupert Sutton, "Preventing Prevent? Challenges to Counter-Radicalisation Policy on Campus," The Henry
Jackson Society, 2015
31

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Kritiks
I think the most common kritiks that will be run on this topic will argue from a ruse of
solvency perspective. In a world with unrestricted free speech, minorities and under-represented
groups will still be overpowered and efforts to spur a revolution will be placated because
colleges think they have solved the problem.34 I also think there will be kritiks read against
abstract affs that argue for principles of freedom and autonomy, or kritiks that criticize the
authors of very philosophical arguments in favor of protecting the inviolability of autonomy
Concluding Thoughts
Overall, I am very excited for this topic as I think it is very relevant. I think regardless of
your debate style or whether you compete on the local, state, or national circuit, you will find
positions that can be run. Depending on your opponent, the judge, and tournament, you should
be ready to debate different types of positions. Especially given that the topic starts after winter
break, you have more free time to get ahead with preparing for tournaments.
Good luck!
Mitali Mathur


34

Tariq Khan, "Masking Oppression as Free Speech: An Anarchist Take," The Hampton Institute: A working-class
think tank, November 10, 2015

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About Mitali Mathur
Mitali competed in LD for 4 years at Greenhill School with success on the local, state,
and national level. She qualified to the Texas Forensics Association debate tournament three
times, placing third her junior and senior year. Over her debate career, she cleared at national
tournaments including St. Marks, Grapevine, Meadows, Glenbrooks, Isidore Newman, and
Emory. She also qualified to the TOC her junior and senior year. Mitali was honored to be a
member of the USA Debate Team, through which she placed second in the Harvard Westlake
Tournament and Holy Cross Tournament, won the Blake Tournament, and the team placed 10th
in the world at the World Schools Debating Championship held in Singapore. She currently
attends the School of Foreign Service at Georgetown University.

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Works Cited
Brison, Susan J., "The Autonomy Defense of Free Speech," Ethics, Volume 108,
Number 2, January 1998
Burleigh, Nina, "The Battle against 'Hate Speech' on College Campuses Gives Rise to
a Generation that Hates Speech," Newsweek, May 26, 2016
Calleros, Charles R.,"Paternalism, Counterspeech, and Campus Hate-Speech Codes: A
Reply to Delgado and Yun," Arizona State Law Journal, Volume 27, 1995
Fiss, Owen M., "Free Speech and Social Structure," Iowa Law Review, 1986
Foundation for Individual Rights in Education, "What are Speech Codes?"
Friedersdorf, Conor, "The Glaring Evidence that Free Speech is Threatened on
Campus," The Atlantic, March 4, 2016
Greenawalt, Kent, "Free Speech Justifications," Columbia Law Review, Volume 89,
Number 1, January 1989
Khan, Tariq, "Masking Oppression as Free Speech: An Anarchist Take," The Hampton
Institute: A working-class think tank, November 10, 2015
Leonard, James, "Killing with Kindness: Speech Codes in the American University,"
Ohio Northern University Law Review, Volume 19, 1993
MacMillion Dictionary, Any
Marriam Websters Dictionary, Restrict
Marriam Websters Dictionary, Any
Nebel, Jake, "Jake Nebel on Specifying 'Just Governments,'" Vbriefly, December 19, 2014
Peterson's, "Public University vs. Private College," September 29, 2015
Richardson, Bradford, "'Safe Spaces' Balloon on College Campuses Following Donald
Trump Win," The Washington Times, November 10, 2016
Sutton, Rupert "Preventing Prevent? Challenges to Counter-Radicalisation Policy on
Campus," The Henry Jackson Society, 2015
The Legal Dictionary, Colleges and Universities
The Legal Dictionary, Constitutionally protected speech

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Topic Analysis by Felix Tan



January/February 2017

Topic Analysis by Felix Tan



Resolved: Public Colleges and Universities in the United States ought not restrict any
constitutionally protected speech.
Introduction
The question of free speech in educational spaces is a deep and controversial discussion

in the literature. This discussion centered around hate speech and pornography in the early 90s,
but has expanded to include a broader discussion embodied in college speech codes. This topic
appears to be very narrow: there is little flexibility for affirmative advocacy choice. However, a
scan of the literature reveals that there are diverse justifications for both sides.
Interpretational Issues
Public
Public here clearly refers to universities or colleges (hereafter I will simply use college
to refer to both) that are predominately funded by the state. This shouldnt carry much
ambiguity, as a simple google search will yield whether or not a college is considered a public
university. However, it is important to note that affirmatives can defend the right of private
institutions to restrict speech. Thus, the affirmative can argue that public institutions are an
extension of government and can employ justifications centered around the specific duties of the
government (e.g. Legitimacy).
Universities and colleges
While it appears obvious, the specification of universities and colleges as the actor of
the resolution carries a significant importance. Oxford English Dictionary defines university as

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[a]n educational institution designed for instruction, examination, or both, of students in many
branches of advanced learning, conferring degrees in various faculties, and often embodying
colleges and similar institutions. Similarly, college is defined as an educational institution or
establishment, in particular. The key nuance here is that the resolution refers to the institutions
not the individual actors within those institutions. As such, one could argue that the resolution
only pertains to college-wide policy designed to prevent or punish certain speech. This would
exclude the actions of individual classrooms from consideration. Thus, a teacher could still
punish racist speech used by a student by giving the student a failing grade. This seems to have
intuitive grounding: in class discussions you can argue what you want, but the teacher gets to
decide what academic standard it merits. For the teacher, a racist comment may be no different
than the poorly justified comment: both do not meet the teachers academic standard.
Any
I am confident that almost everyones initial interpretation of this word is that the
resolution compels the affirmative to defend all constitutionally protected speech. I would not be
surprised, however, if debaters tried to defend an interpretation of any that included plans. For
example, Oxford dictionary defines any as used to refer to one or some of a thing or number
of things, no matter how much or how many. This definition appears to allow specification
given the wording some, but this definition refers to the use of any as a pronoun or determiner.
The resolution, however, uses any as an adverb: any modifies the adjective constitutionally
protected. Alternatively, Oxford dictionary defines any when used as an adverb as (used for
emphasis) at all; In some degree. Still, in some degree can create the ambiguity that can be
construed as a justification for plans.

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Given that this is the TOC topic and the communitys strong favor for plans, it is
definitely quite plausible that debaters will successfully justify an interpretation of any that
includes plans. Albeit counter-intuitive to its common usage, debaters would simply need to
employ theoretical (pragmatic) justifications for plan debate. Such would mirror the classic bare
plurals debate. However, the defense of plans against bare plurals could employ a criticism of
Nebels assumption of what it means to be topical.35 As such, I believe the any topicality
debate will be more difficult than the bare plurals debate.
Constitutionally protected speech
Constitutionally protected speech clearly refers to the First Amendment. But there is
room for other constitutional concerns to factor in. For example, a court may rule that the
Fourteenth Amendment concern regarding particular speech conflicts with and contextually
trumps the First Amendment. In this circumstance, one view might argue that the speech is
protected by the First Amendment but not constitutionally protected. Another view could also
easily say it would not be protected under the First Amendment in any meaningful sense.
Luckily, debaters do not have to be concerned over which view is correct: since in both cases
speech is not constitutionally protected.
There are two ways to approach defining constitutionally protected speech. First,
debaters can define it intensively. Intensional definitions define a term by specifying the
necessary and sufficient conditions for the terms use. For example: a bachelor is an unmarried
man. Alternatively, debaters can define it extensionally. Extensional definitions list everything


35

Overing, Bob. Topicality and Plans in LD: A Reply to Nebel by Bob Overing. Premier Debate. Web.

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that fall under that definition, i.e. they are the specific cases that an intensional definition
implies.36 To under the distinction consider the following two affirmative cases:
1. The state has a moral obligation to unconditionally obey the constitution. Public
universities are an extension of the state and therefore they ought not restrict any
constitutionally protected speech.
2. Current precedent established by the supreme court says that constitutionally protected
speech is x, y and z. Hate speech is not protected. x, y and z are valuable for public
universities and should not be restricted.
The main difference is that while case #1s justification does not depend on what is determined
to be protected by the Supreme Court. By extension then, case #1s justification also justifies the
extensional definition. Case #2 is different: it might not support the resolution if hate speech
were protected. Perhaps the impacts of hate speech outweigh the speech that is valuable. Thus,
defending the intensional definition commits the affirmative to defend much more than the
extensional definition. More specifically, it requires affirmatives defend the resolution even with
changes in Supreme Court precedent. With a vacant supreme court justice and an incoming
Trump presidency one can see how that precedent might turn for the worse. Of course, those
defending the intensional definition can simply argue that a change will not occur: this reduces
the scope of the affirmatives advocacy to a link debate. Whether the affirmative should opt for
the link debate or topicality debate will depend on their justification and the community norm
that develops around this issue.


36

Thank you to Marshall Thompson for explaining the difference between intensional and extensional definitions.

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Possible Affirmative Advocacies
Government Legitimacy
The most common argument for the affirmative in the literature centers on Government
Legitimacy. This argument is common for a reason: it has the best grounding and a strong
supporting intuition. These positions can be grouped into three main contention level arguments:
1. Freedom
This should be obvious: the First Amendments fundamental principle is freedom. There is a
deep tradition of justifying the imperative of freedom of speech. Any justification of autonomy
from Kant to democratic theory should provide a robust defense of freedom of speech. The
trouble will be explaining why certain forms of protected speech do not qualify as violation onto
another that can be restricted. Charles Fried offers a potential explanation. He argues:
It is central to the idea of a fundamental right to liberty that no one should curtail the liberty
of another when the only reason is disagreement about another's conception of the good.
State regulation of unwelcome expression is the punishment of pure ideas or beliefs in
a free, just society (a liberal society) no one may be compelled to adopt or to deny any
particular theory of the good...37

Alternatively, Helga Varden defends free speech from the Kantian tradition. She argues that
communication does not exert any external force since whether or not someone chooses to act is
entirely up to him or her.38
2. Content Neutrality
Another important issue with restriction of speech in college is the focus on content. Commonly
cited in the literature is that colleges restrict speech offensive to minority groups but not those

37

Fried, Charles (1992) "The New First Amendment Jurisprudence: A Threat to Liberty," University of Chicago
Law Review: Vol. 59: Iss. 1, Article 9.
38
Varden, Helga. A Kantian Conception of Free Speech, AMINTAPHIL: The Philosophical Foundations of Law
and Justice: Vol. 3, pp 39-55.

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against white heterosexual men. This may seem trivial: there are obvious reasons why minority
groups need special protections. However, some argue this is in tension with fundamental
principles of democracy. As Fried argues:
The ideas the universities condemn are false and offensive, but the universities do not
condemn all false and offensive ideas Individuals within the community may not
espouse some forms of race and gender superiority, but may espouse others none of these
codes would condemn burning the American flag, even to affront a gathering of veterans
or the widows and orphans of soldiers killed in battle. This discrimination makes clear
that those who promulgate these regulations assign to themselves the authority to determine
which ideas are false and which false ideas people may not express as they choose some
of the proponents of these codes scorn the idea of content neutrality.39

The intuition is simple: the government should not be in the business of determining what ideas
are correct.
3. Slippery Slope
The last argument is an extension of #2. Government should not be in the business of
determining what ideas are correct. Not only does it contradict key democratic principles, but it
also can lead to dangerous consequences. For example, if the state can define what hate speech
is can it not be used to define radical black authors like Wilderson as hate speech against whites?
For example, Friedersdorf argues that Michigans speech codes were used to accuse and punish
black students.40 Furthermore, censorship should not become a solution to problems. For
example, Kelly Sarabyn argues that speech codes in Canadian universities contributed to making
censorship an accepted solution to problems.41


39

Fried, Charles (1992) "The New First Amendment Jurisprudence: A Threat to Liberty," University of Chicago
Law Review: Vol. 59: Iss. 1, Article 9.
40
FRIEDERSDORF, CONOR. "The Lessons of Bygone Free-Speech Fights." The Atlantic. Atlantic Media
Company, 10 Dec. 2015. Web.
41
Sarabyn, Kelly. "The Slippery Slope of Suppressing Speech - FIRE." FIRE. N.p., 19 Feb. 2014. Web.

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Confronting language rather than avoiding it
Many critical scholars argue that avoiding offensive language is counterproductive. They
maintain censorship create bubbles that provide the illusion of protection. A prominent author in
this direction is Judith Butler. In her book Excitable Speech, Butler argues that speech must be
confronted to be transformed.42 Building a position around Butlers argument allows the
affirmative to impact turn common disadvantages of the negative.
Henry Giroux argues that creation of safe spaces is harmful to critical pedagogy. He
argues that learning should be unsettling and should include thinking outside the boundaries of
established ideologies.43 Similarly, Wendy Browns argues that the domain of free public
speech is not one of emotional safety or reassurance.44 Of course, Girouxs argument is not as
radical as Butlers. Defending this line of argument would require that the affirmative de-link
hate speech from its protections (see topicality section).
Another angle the affirmative can explore is to simply argue that censorship leads to a
backlash that is counterproductive. For example, Strossen argues that censorship glorifies racist
speakers and mask the problem.45
Possible Negative Advocacies
Constitution Kritik
Since the affirmative advocacy is directly tied to constitutional protections, the negative
has strong ground criticizing the constitution. For example, Gillborn argues that the narrative that

42

Butler, Judith. Excitable Speech: A Politics of the Performative. New York: Routledge, 1997. Print.
Evans, Brad, and Henry A. Giroux. "The Violence of Forgetting." The New York Times. The New York Times, 20
June 2016. Web.
44
Free Speech is not for Feeling Safe, by Wendy Brown. UC Berkley Faculty Association. Oct. 2014. Web.
45
Strossen, Nadine. Regulating Racist Speech on Campus: A Modest Proposal? Duke Law Journal, vol. 1990, no.
3, 1990, pp. 484573. www.jstor.org/stable/1372555.
43

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speech doesnt hurt anyone underlies normalization of racial stereotypes that undermine
education of black students.46 Combining specific links like this with a broader critique of the
constitution can create a good generic strategy that can give the negative a reliable option to uplayer. Charles Mills The Racial Contract is a good source for a critique of the constitution. He
argues that color-coded morality of the Racial Contract restricts the possession of this natural
freedom and equality to white men. In other words, contracts like the constitution give the
illusion of neutrality but exists to codify white privilege.47 This position would work well with
the hate speech disadvantage: the 2NR can use the disadvantage to help demonstrate (and win)
the link story.
Hate Speech Disadvantage
Countless authors argue that there is no hate speech exception to the First Amendment.
For example, in R.A.V. v. City of St. Paul the Supreme Court ruled that the citys ordinance was
unconstitutional and implied that hate speech was a protected category of speech.48 Similarly, the
court also ruled University of Michigans speech codes unconstitutional in Doe v. University of
Michigan.49 The key to making this a strong generic will be creating a nuanced impact story. The
negative should clearly impact how hate speech affects minorities. Furthermore, negatives
should explore the implications hate speech have for the principles affirmatives defend: is hate
speech consistent with principles of freedom? Does it harm the virtuous development of
students? These nuanced impact stories should give the negative access to any affirmative

46

Gillborn, David. Risk-Free Racism: Whiteness and So-Called Free Speech. Wake Forest Law Review 44
Wake Forest L. Rev. 535. Summer, 2009.
47
Mills, Charles. The Racial Contract, Cornell University Press; First Paperback edition (June 25, 1999), pgs. 1217
48
Volokh, Eugene. "No, Theres No hate Speech Exception to the First Amendment." The Washington Post. WP
Company, 7 May 2015. Web.
49
Hudson, David. "Hate Speech & Campus Speech Codes." First Amendment Center. N.p., 13 Sept. 2002. Web.

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criterion. For example, Weberman argues that hate speech undermines the market place of ideals,
which might help negatives answer affirmatives centered on the democratic spread of ideals.50
One excellent source for impacts is Words that wound: Critical race theory, Assaultive Speech,
and the First Amendment by Matsuda, Lawrence and Delgado.51
College as a site of virtue inculcation

Colleges are different from the state. Of course, they are both public actors, but colleges

arguably have specific obligation towards the educational development of students. These
specific obligations are likely found by analyzing the initial justification for public colleges. Why
should the state be involved in setting up (funding) educational institutions at the university level
in the first place? Virtue ethicist might argue that it is to help the virtuous development of its
citizens.52 As such, a paternalistic justification can be made that supports restricting speech. Eric
Posner hints at this idea: he justifies restriction of speech with the idea that teaching needs to
balance education concerns that even college students are still like children in moral
development.53
Concluding Thoughts
This topic will be unfamiliar for many debaters. It is narrow in advocacies but diverse in
principles. As such, this topic will place less emphasis on collecting a large number of cards and


50

Weberman, Melissa. University Hate Speech Policies and the Captive Audience Doctrine, Ohio Northern
University Law Review 36 Ohio N.U.L. Rev. 553. 2010.
51
Matsuda, M.J., C.R. Lawrence III, R. Delgado, K. W. Crenshaw. (1993). Words that wound: Critical race theory,
Assaultive Speech, and the First Amendment. 49821st Ed. Boulder, CO: Westview Press.
52
Homiak, Marcia, "Moral Character", The Stanford Encyclopedia of Philosophy (Fall 2016 Edition), Edward N.
Zalta (ed.)
53
Posner, Eric. "Colleges Need Speech Codes Because Their Students Are Still Children." Slate Magazine. N.p., 12
Feb. 2015. Web. 06 Dec. 2016.
(NOTE: Posner does say that if public colleges do not restrict speech it would resolve concerns of libertarians and
concludes that only private colleges should restrict)

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empirics, and more on quality and coherence of explanation. This topic analysis has touched on
what I think are the promising arguments on the topic. But I encourage you to dive in much
deeper and read surrounding literature. The more you understand relevant analogies, examples
and principles the more successful you will be.
Good luck!
Felix Tan
About Felix Tan
Felix Tan debated four years at Clements High School (TX). During his career, he
reached elimination rounds at nearly every national invitational he attended, including Greenhill,
Glenbrooks, Strake, and Meadows. In his senior year, Felix was a finalist at the TOC. He
currently attends Oxford University.

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Alt. Argumentation by Bailey Rung



January/February 2017

Alternative Argumentation by Bailey Rung


Resolved: Public colleges and universities in the United States ought not restrict any
constitutionally protected speech.
Foreword
This paper seeks to examine the 2016 January-February LD resolution from a political

pedagogy lens while also correcting for perceived imbalances in the resolution. While the issue
of free speech on college campuses is hotly contested and an excellent topic for debate, many
including myself feel that the wording of the resolution and the structure of debate in general are
inadequate in truly engaging the issue. Aside from issues of performance and agency (which will
be discussed), college free speech is an ongoing debate in the courts and the literature. The
nascent nature of the topic means that the literature is likewise new, evolving, and unstable.
Debaters must make due by modifying their construction and strategy habits to take advantage of
the scholarship.
There are several focal points of free speech debates that this paper will focus on, using them
as a common theme when outlining competition-ready arguments. Issues discussed include:
Court doctrine, student voices, case studies, and policymaking. Discussing these issues from
their various epistemologies reveals starting points for framework and developing offense. After
framing the debate from the research perspective, this paper offers outlines for critical and policy
arguments for each side.

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Literature Review & Division of Ground
The central tenet of debating college free speeches is to start with the voices themselves
college students.54 Such an examination will give insight into how policy and critical scholars
construct their arguments. Broadly speaking, students themselves are fiercely divided on the
issue.55 While a near overwhelming majority of college students agree that open learning
environments are more important than restricting free speech, most agree that specific derogatory
terms and slurs can and should be restricted.56 This is where clash is generated. First, students
cant agree on what counts as a slur.57 This opens interesting ground for discussion about tone
policing and violent language. Second, what are the exact grounds for restricting any form of
speech anyway? The Constitutionally Protected Speech part of the resolution muddies the
answer because it isnt clear what constitutes hate speech or the precedent for limitation at least
not directly in the context of the college environment. At best the constant shifting in forms of
rhetorical violence means that the court must continually adapt. The lesson to be drawn is that
how college students speak matters; not only because of the threat of direct interpersonal
violence but as well because speech sets the standard for legislative and judicial decisions.
The paradox between students who both reject and accept limitations on speech also offers
insight into researching arguments for position. On one hand, values of deliberative discourse,


54

While college students are undoubtedly the majority of speakers on college campuses, public universities and
colleges are constitutionally prohibited from preventing the public from entering campus spaces and
speaking as well. Thus, restrictions on college campuses apply to both college students and to those
members of the public who wish to speak on college campuses.
55
Nick Anderson. 2016. Washington Post - https://www.washingtonpost.com/news/gradepoint/wp/2016/04/04/survey-college-students-seek-balance-on-free-speech-and-hatespeech/?utm_term=.16bbbc8e2905
56
Ibid.
57
Ibid.

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individual liberty, and public goods all seem to justify unmitigated right-to-speech.58 On the
other side, social justice epistemologies, the reality of psychological trauma, and subjective
moralities invite limited restrictions to free speech.59 Regardless of the different debate
paradigms one might use - truth-seeking, policymaking, and critique ample moral and ethical
justifications exist for both sides of the debate to begin framing off. This should serve as a
reminder to address the resolutional issue directly when opening research on the topic.
College free speech also seems a fitting debate topic because of its presence in
policymaking.60 The very scholarship meant to record the argue the issue of campus speech
rights has now presented itself in the US legislative discourse.61 It seems that this debate has
become unavoidable at the national level, with watchdogs reporting 1st amendment violations on
a majority of US college campuses.62 Not only are congresspeople debating the philosophical
merits of the issue, they are also seeking to define the issue and its terms.3 While the issue of the
constitution obviously necessitates policy-centric arguments, the way that legislators discuss and
act on the issue presents ground for fiat-ing government action. Being able to link the scholarship
examining college free speech fights to that literature used at the policy level will also make for
contextual and nuanced debates as a whole.
It is worth examining the constitutional issue at hand what rights does a college student
have for free speech? The ACLU explains three basic principles to follow in relation to the law.
First, what youre saying cant be restricted, but how you say it can.63 Second, free speech is

58

Sam Gill. 2016. Knight Foundation - http://www.knightfoundation.org/articles/lets-talk-about-free-speech


Ibid.
60
Lydia Wheeler. 2015. The Hill - http://thehill.com/regulation/243785-colleges-are-restricting-free-speech-oncampus-lawmakers-say
61
Ibid.
62
Tyler Kingkade. 2014. The Huffington Post - http://www.huffingtonpost.com/entry/colleges-restrict-free-speechfire-report_n_4633542
63
ACLU - https://www.aclunc.org/our-work/know-your-rights/free-speech-protests-demonstrations
59

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equally available to all persons in the US regardless of any identifying factors whatsoever.5
Third, you must obey local ordinances and observe regulations.5 Clearly, the issue of free speech
on campus relates to principle number three public institutions can set ordinances regulating
speech. This not only bolsters the idea that this resolution will be a policy debate, but identifies
the burden of the debate. Because the resolution uses the word any, then the affirmative must
defend unlimited 1st amendment speech, and may only defend limits on speech barred by the
constitution. Thus, the negative must either defend current limitations or advocate for the plan
minus X number of restrictions.
This brief review of the literature and public discourses on campus free speech should have
revealed a few key factors in researching the resolution. First, finding the arguments starts with
looking at the voices of college students. Second, the literature is rife with various common
moral and ethical perspectives. Third, the debate absolutely merits a national level policy
discussion. Finally, the burdens for the debate are set by defining constitutionally protected free
speech and any.
Affirmative Arguments
Overview
The affirmatives role, as stated, is to unconditionally defend free speech. This means that
the 1AC plan must always defend the resolution in its entirety, regardless of its legal form. In
this sense, the 1ACs scholarship is bound to draw upon the voices of students opposed to safespaces and other restrictions when constructing arguments. As mentioned, students advocating
for unlimited speech believe the open learning environment should be the priority. That means
any value used and all offense claimed must inherently appeal to this maxim. The advocacy of
free speech by students is characterized by a striving desire for open horizons. Most feel speech

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restrictions on campuses are contradictory with the value of transparent education.64 These
feelings felt across the country fomented with a class action lawsuits by students at three
Midwestern and one Californian university in 2014.65 This event proved to be turning point in
the national dialogue, with increasingly large and open advocacies for 1st amendment defense.
While statistics on exact feelings vary, many polls where misleading in concluding students
wanted speech bans in large numbers.66 Given that the largest and most pertinent voice on the
issue is calling for open learning environments, 1AC construction should be revolve around this
advocacy.
Traditional 1ACs
This paper highly recommends those aiming for some iteration of a V/VC affirmative
appeal to either public goods or individual morality as values. Defending the university as a
public good entails a notion of open access to learning and interaction. Arguing the university
should be kept open and confrontational allows affirmatives to claim offense off deliberative
democracy and public pedagogy. Defending the right to free speech from an individual
standpoint is also a ready option. Affirmatives that value individual liberty should frontload
framing and impacts as to why inalienable speech rights are a prerequisite to every other right.
Policy 1ACs
Plans defending the right to free speech will likely claim the same offense as a traditional
1AC deliberative democracy and public pedagogy. Keeping in mind the overall goal of an open

64

Elana Cates. 2015. The Emory Wheel - http://emorywheel.com/free-speech-no-exceptions/


Theresa Watanabe. 2014. The Los Angeles Times - http://www.latimes.com/local/lanow/la-me-ln-free-speech20140701-story.html
66
Jesse Singal. 2015. New York Magazine - http://nymag.com/scienceofus/2015/11/false-alarm-on-millennials-andfree-speech.html
65

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learning environment, plans should propose specific mechanisms to ensure compliance and
prevent encroachment on free speech. This can include monitoring, modifications to the code of
federal regulations, and grant conditions. The idea is to bolster traditional offense by using a
specific legal procedure to guarantee solvency and solve negative offense. The advantages to
using mechanisms like monitoring or legal modifications is that the affirmative has stronger
grounds to defend their epistemology and circumvent noncompliance or blurring arguments.
Kritikal 1ACs
There are a few nuanced ways to claim critical offense of unmitigated free speech. The
first is call-out culture literature, which advocates occupying and disrupting public spaces to
speak out against specific forms of oppression whether the audience likes it or not. The second
is silencing literature, which argues that restrictions on free speech disproportionately impact
oppressed groups and are meant to allow white and masculine voices to fill remaining spaces.
Victim silencing in particular might be an effective device for a Kritikal 1AC drawing upon the
necessity to speak out and the resistance to domination examined in the two above theories. A
capitalism critique is by far the most intuitive route for the affirmative, with swathes of literature
arguing for individual expression against capitalism and its spaces.
Negative Arguments
Overview
The negatives established role in the free speech debate is to defend or propose just one
single restriction as morally good. This means the negative should start by looking for impacts
that have moral considerations that override constitutional ones. The negative must then also

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examine what exactly constitutes such an extenuating circumstance. Based on the literature
discussed, these instances would be ones that in essence are hate crimes but definitionally are not
since thats the precedent for restricting speech.67 Exploiting definitional differences of what
the resolution prevents from being restricted perhaps offers the best negative strategy. Another
framing issue for free speech is the exact role of the constitution in regulating. In other contexts,
some posit that explicit appeals to the constitution are bad modes of administering rights because
they cant account for complex legal situations.68 Some legal experts argue that its the exact
subjectivity of rhetorical violence on campus combined with the inadequacy of the constitution
that provide incentive not to delimit free speech.69 Views of many college students seem to
affirm this notion, as many believe there are various instances that justify restriction but elsewise
allow overwhelmingly free speech.70
Theory
Topicality is an extremely persuasive argument on this resolution. First, every debater
should have Public and Any 1NCs. Poorly constructed 1ACs might allow for some
restrictions, or may talk about private universities. These are easy targets for T proficient
negative debaters. A Constitutionally protected speech T is more nuanced, presenting the
negative the opportunity to argue that a form of speech the 1AC defends is either not
constitutionally protected or that said some protected speech is restricted by plan. Many argue
that the term constitutionally protected speech is a vague term, opening up room for specification
shells. Restriction is also an interesting word; interpretations could easily argue that the

67

Deanna Garrett. 2000. The University of Vermont - http://www.uvm.edu/~vtconn/?Page=v20/garrett.html


The Economist. 2016 - http://www.economist.com/blogs/democracyinamerica/2016/01/limits-free-speech
69
Laura Testino. 2015. The Crimson White - http://www.cw.ua.edu/article/2015/02/law-expert-comments-oncampus-free-speech
70
Liz Dwyer. 2016. Take Part - http://www.takepart.com/article/2016/04/04/college-students-free-speech-limits
68

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affirmative stops regulation of speech (many see these acts as distinct). Restriction also presents
opportunities for specification shells arguing that an 1AC plan must include a solvency
mechanism.
Kritiks
The kritik is a dangerous weapon for the negative on this topic. First, a civil discourse
critique is an easy pick. A Wilderson-esque argument that the discussions set up by the
affirmative are still inherently white and dominated by whites necessitating an ethical rejection
and an end to white society would be highly effective. A second option is a reformism critique.
Various strains of anti-capitalism and anti-imperialist literature argue that acting within the state
to compromise only entrenches power, and that only an unflinching rejection of sovereignty can
solve. Settler colonialism is also a strategic argument, with many indigenous scholars arguing the
debate is irrelevant because public universities are built on stolen land. Only handing back the
land and giving discursive power to indigenous people can end the dominating practices of the
affirmative harms. Critiques of public education, based on the specific form of education in
question (Masculine, Racist, Etc.) also link well, arguing that the discourses the affirmative
allows cedes to the reductionist power of the state.
Disadvantages
Disadvantage ground is perhaps tougher on this topic than in others. This paper
encourages debaters to really explore Kritikal and theory round in addition to case before looking
at DA debate. That said, a few options exist. First, a Baiting DA would argue that the affirmative
sends a signal that all speech is acceptable (regardless if thats true), which will increase verbal
harassment and rhetorical violence in the form of hate speech. Second, a Flight DA would

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likewise argue that the 1AC scares minority students out of the public education system because
its too risky. The impacts can vary from whitening of institutions, poverty, and intellectual
decline. This paper highly recommends finding a solvency advocate for PIC related to these
types of DAs. Simply advocating for unlimited speech as per the plan minus one instance likely
resolves all 1AC offense in virtue of scope while still protecting a certain group. The internal net
benefits for certain types of restrictions should focus on why that particular form of hate speech
is uniquely bad for one group.
Good Luck!
Bailey Rung
About Bailey Rung
Bailey is a 2014 graduate of Blaine HS in Minneapolis, MN. Bailey spent his 4-year
career competing in a variety of events, but his true passion lies in Congressional Debate because
of its dynamic nature and challenging format. Some of his highlights include competing in and
presiding semis at ToC and NSDA, as well as finals at Minneapple, Dowling, Blake, and
Harvard. Additionally, Bailey has earned multiple leadership bowl awards and round robin
placements. As a coach, Bailey has helped bring students to MSHSL States, ToC, and Nationals,
and his lab students in Congressional Debate at CBI have made it to outrounds at Glenbrooks,
Blake, Apple Valley, Harvard, Cal, and Nationals & ToC. Bailey is an assistant debate coach at
Ridge High School, and is looking forward to a great year ahead. Bailey is currently a
sophomore at Western Kentucky University, and competes actively in NFA-LD Debate and IEs.
At the 2015 PKD Nationals, Bailey took 3rd in LD Debate, and was an Octofinalist at 2015 NFA
Nationals. Bailey is excited to return to CBI this summer, and hopes to use his own competitive
experiences to make an impact on the lives of attending students. He is currently an assistant
coach for Ridge High School (NJ).

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Lincoln-Douglas Brief

Framework
Analysis

Framework Analysis by Rory Jacobson January/February 2017



Framework Analysis by Rory Jacobson



Resolved: Public Colleges and Universities in the United States ought not restrict any
constitutionally protected speech.
While many plan-friendly programs have been outspokenly critical of the 2017 Jan-Feb

Lincoln-Douglas topic due to the utilization of the word any of the word any, I would urge
these debaters to reflect. In doing so, they might reconsider the impact that these codifications
and restrictions will have on the communitys pursuit of higher education. First, I will provide an
introduction to the legal and constitutional precedents and protections established on the topic,
followed by a discussion of both liberal and neoconservative justifications for the restriction or
protection of constitutional speech, and finally an analysis of the strategic merit of discursive,
legal, and ethical frameworks relevant to issues of free speech.
Unlike our last topic, it is my belief that the constitutional precedents surrounding free
speech are relatively clear and well established, at least until we get into university-specific
precedents. Beginning with Brandenburg v. Ohio, the Supreme Court set clear precedent that
speech that is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action" will not be protected by the First Amendment. The issue with this
precedent is that it has been applied by the to protect the violent threats of KKK leaders and
racist speech, as the threshold of imminent action creates a difficult standard for the
prosecution and thus has offered protection for a wide variety of violent verbal campaigns. More
recently Miller v. California established a bright-line for language so obscene that it should to be
excluded from constitutional protection. The decision established the Miller Test, or a standard
of linguistic works which, taken as a whole, appeal to the prurient interest in sex, which portray
sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious

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literary, artistic, political, or scientific value. Obviously, the subjective value of these works is
recognizably vague and as a result, interpretations of obscene speech are more representative of
the Justices own values than the academic significance of the speech.
Similar to the inciting speech discussed above, the category of fighting words as
defined in Chaplinsky v. New Hampshire sought to curtail constitutional protection of language
that tends to produce an immediate breach of peace. This constraint is extended to speech that is
intended to threaten, by the precedents set in Virginia v. Black and Watts v. United States. These
cases dictate that threats of physical harm to individuals and groups will not be protected by the
Constitution, unless the threat exists in the form of social ostracism, boycott, or the threat would
be taken seriously by a reasonable person. Additionally, it is important to know that in Papish v.
Board of Curators of the University of Missouri, public universities formally lost the ability to
censor speech that is considered to be indecent but not obscene. It is vital to recognize that intent
versus consequence becomes a vital factor in choosing normative ethics to evaluate
constitutionality since issues such as hate speech have become debates over whether hate speech
must be specifically intended to incite violence to be excluded from constitutional protection.
Therefore, framing free speech as an issue of intent rather than consequence (discursive violence,
educational inequity, health/safety) becomes a strategic negative framings as condemning
statements that are not intended to be harmful but are nonetheless becomes a restriction on
constitutionally protected speech that may be unethical.
The obvious implication of these precedents when choosing frameworks on either side of
the topic is particularly clear in that negative frameworks must advocate for increased censorship
beyond these precedents, while the affirmative is left to defend the universal application of the
status quo Supreme Court precedents on free speech. This seems intuitive since affirmatives

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advocating for an expansion of constitutional protections would clearly be extra topical, while
negatives with similar advocacies are highly susceptible to a variety of permutations. Therefore,
it is in the interest of negatives to argue that constitutional precedent has empirically protected
hate speech, while affirmatives will want to argue that the Constitution has historically protected
minority groups from obscene or threatening speech. Affirmative frameworks can most
strategically defend these existing precedents through either arguing that censorship is
illegitimate on principle or arguing that these speech codes are actually more likely to be
subverted and used against the protected identities that that they exist to protect. Or, as explained
above, affirmatives may argue that current First Amendment restrictions are sufficient to protect
citizens from intentional or foreseen harm, while also contending that there is an a priori value in
free speech and therefore it ought to be protected regardless of consequences.
Inversely, the neoconservative ideology associated with unfettered free speech dismisses
the Lefts axiomatic assertion that speech itself can be violence, arguing that minority groups
seeking protections through campus speech codes ought to toughen up, or more commonly,
that speech codes inhibit educational opportunities and discussions. On these grounds, multiple
campus speech codes have been indicted, including the University of Michigans in Doe v.
University of Michigan. This case declared that the campus code was unconstitutional on the
grounds that the codespecifically censoring racist speechwas in violation of First
Amendment Rights and did not actually invoke the Fourteenth Amendment protections its
defenders cited. In these cases, negative frameworks have high quality ground under critical race
theories and critical legal theories which criticize the dismissal of the disproportionate discursive
violence against protected identities on campuses. Individuals such as Richard Delgado and
Jeremy Waldron have championed philosophical theorizations on the impacts of hate speech on

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minority students and pushed for additional campus protections. These arguments explain that in
order to promote equality in campus environments, hate speech codes become imperative
additions to university codes of conduct in pursuit of equal access to public resources. In this
sense, the argument for hate speech codes becomes one that operates outside of the confines of
constitutional threat censorship, yet nonetheless seems to protect the public universitys most
vulnerable students from the verbal violence inflicted. In these cases, a restriction of free speech
through campus hate speech codes can become a Rawlsian project of equality or a contractual
obligation of universities to maintain equal access to resources. In either case, even critical race
theorist such as Henry Louis Gates have criticized these codes by arguing that free speech is a
symbolic right and the long-term consequences of restricting free speech activism (especially
with respect to Pro-Black movements) are worse than the immediate emotional trauma of being
called a racist, homophobic, sexist, or ableist slur.
But negatives need not extend their burden even as far as condemning hate speech, given
that the free speech debate on campuses has recently centered on topics such as trigger warnings
and content restrictions for the preservation of safe spaces. While there is certainly literature
defending these policies and concepts, the vast majority of academic publications on these issues
are characterized by a neoconservative backlash against progressive coddling of
undergraduates. These arguments will be particularly intriguing given that Lincoln Douglas
debaters have already begun a conversation on the importance of trigger warnings and
educational safe spaces on the pre-fiat and theoretical levels. Thus, normative ethical arguments
surrounding the importance of trigger warnings and safe spaces become particularly relevant to
the theoretical and pre-fiat layers when debate tournaments are facilitated by and take place on

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public universities and debaters regularly advocate for the inclusion of these policies in their
educational sphere.
Particularly, negatives may wish to utilize arguments that demonstrate that inclusionary
safe spaces for LGBTQ identified individuals and people of color are particularly relevant for
spaces of discussion and health. These negative arguments are consistent with traditional
oppression frameworks condemning dehumanization and discursive violence, but also offer
arguments for the increased social welfare of protected identities through the enforcement of
trigger warnings and hate speech codes that are limited to certain physical or digital sanctuaries
on campus. I think it is important here to return to the previous discussion on constitutionality
and obscenity, as speech deemed to have sufficient academic merit is protected speech. Thus,
according to precedent, students would be exposed to materials that may be potentially sexually
explicit or derogatory in nature, though contextually the materials would also be vital for
sufficient academic engagement.
Surprisingly, there exists a decent base of literature surrounding the deontological and
utilitarian framings of the campus hate speech debate. Offense on the consequentialist debate is
most clearly drawn from both from the physical and discursive violence against minority groups
as an impact of constitutionally protected hate speech. Oppositional affirmatives may argue that
these bans actually restrict discourse on crucial subjects and lower overall quality of life through
a restriction on verbal autonomy. Eric Heinz, Professor of Law and Humanities at the University
of London explains that:
Both deontological and consequentialist approaches have shaped the hate speech
debate, and Parekh cites both for supporting bans: Hate speech, Parekh claims, is
objectionable for both intrinsic and instrumental reasons. On both sides of the
debate, however, writers at times make ostensibly consequentialist, i.e. ostensibly
empirical, arguments about the dangers of bans, while in fact, like Parekh, offering

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only speculation about further material harms to persons that hate speech might
cause. (597).
Ideally, these negative consequentialist frameworks would focus on valuing the quality of
life or mental security of those affected by the violent implications of hate speech, while
affirmatives may wish to prioritize the future implications of free speech codes on the
progressive and grassroots movements. The deontological debate on the subject is largely
characterized by arguments contending that hate speech codes restrict autonomy (affirmative) or
are intrinsically vital due to their protection of human dignity (negative). A reasonable
affirmative argument becomes the question of whether these restrictive codes, far from foiling
hate groups, are teaching them how to mock and scorn vulnerable targets within the bounds of
law (598). Similarly, the ACLU points out that:
historically, defamation laws or codes have proven ineffective at best and
counterproductive at worst. For one thing, depending on how they're interpreted
and enforced, they can actually work against the interests of the people they were
ostensibly created to protect. Why? Because the ultimate power to decide what
speech is offensive and to whom rests with the authorities -- the government or a
college administration -- not with those who are the alleged victims of hate speech
The deontological debate thus becomes a question of whether a hindrance of
constitutional free speech is 1) a warranted for protection from discursive attacks on dignity or 2)
an unjustified restriction of contractually protected autonomy. It also seems important to mention
that there is a social contract argument to be made on both sides. Affirmatively by arguing for an
interpretation of hate speech as violence, thus generating an obligation on the state to implement
a monopoly on this linguistic force and negatively by claiming that the government has an
obligation to protect its citizens rights to self-expression as defined in the original compact.
David Richards explains in the University of Pennsylvania Law Review that there is little
question that the [First] amendment was part of and gives expression to a developing moral

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theory regarding the equal liberties of men which had been given expression by Milton and
Locke and which was being given or was to be given expression by Rousseau and Kant.
Although this years Jan-Feb topic may restrict affirmatives to the status quo
constitutional precedent, the court decisions discussed and their subjective brightlines of
academic merit, imminent disruption of peace, and reasonable suspicion of harm shape an
affirmative ground that can reasonably considered to defend some forms of hate speech and
verbal violence, but also protects importing activism and criticism and avoid the subversion of
ambiguous hate speech codes. For negatives, the debate over intention- versus consequencebased ethics will be vital in demonstrating that the emotional violence or dehumanization
associated with certain forms of speech and content is sufficient to extend restriction beyond
current constitutional precedent. In these cases, tailoring framework arguments to ones
advocacy becomes particularly crucial as a focus on symbolic rights, individualism, pluralism,
discursive violence, equality, contractual obligation, among a variety of other standards will be
crucial to defining the extent to which certain grey areas of free speech are constitutionally
protected.
Good Luck!
Rory Jacobson

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Champion Briefs
January/February 2017
Lincoln-Douglas Brief

Evidence for the


Affirmative

AFF: Ban Free Speech Zones AC



January/February 2017

Ban Free Speech Zones AC



The plan to ban free speech zones is particularly strategic as far as topic prep goes

because many generic cards from the topic apply to it. This case can be impacted back to
consequentialist frameworks or deontological framework. The implications of this case could
impact out to the support of democracy (and thus prevention of war, nuke war etc.), they could
focus on structural violence, or they could speak to human dignity. All of these frameworks are
strategic in their own way, so when choosing cards from this file (and subsequently a
framework), keep in mind what types of debates they will be getting you into.
This is a great case because it allows you to limit the topic just enough to avoid a lot of
arguments that the negative might read while maintaining the bounds of the topic. This is
beneficial because it allows you to access all the benefits of the top while negative arguments
like the Hate Speech CP do not apply.
There is a lot of literature about free speech zones outside of universities (such as
political rallies). This literature can be beneficial in regards to spill over arguments in relation to
the impacts and use of free speech zones. Be careful when using these cards though, and
particularly cards that reference court cases in relation to free speech zones, because often they
wont directly apply to universities or colleges.
*Free speech zones on face sounds good, so it will be important to define the free speech
zone both in terms of itself and its effects for those judges who are not familiar with the concept
of the topic literature.

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January/February 2017

Free Speech Zones are overt restrictions of the first


amendment based on menial requirements and standards.
Burleigh, Nina. "THE BATTLE AGAINST HATE SPEECH ON COLLEGE CAMPUSES
GIVES RISE TO A GENERATION THAT HATES SPEECH." News Week. May 26,
2016. Web. December 05, 2016. <http://www.newsweek.com/2016/06/03/collegecampus-free-speech-thought-police-463536.html>.
Their degrees look the same as ever, but in recent years the programs of study behind them have
been altered to reflect the new sensitivities. Books now come with trigger warningsa concept
that originated on the internet to warn people with post-traumatic stress disorder (veterans, child
abuse survivors) of content that might trigger a past trauma. Columbias English majors were
opting out of reading Ovid (trigger: sexual assault), and some of their counterparts at Rutgers
declined an assignment to study Virginia Woolf (trigger: suicidal ideation). Political science
graduates from Modesto Junior College might have shied away from touching a copy of the U.S.
Constitution in public, since a security guard stopped one of them from handing it out because he
was not inside a 25-square-foot piece of concrete 30 yards away from the nearest walkway
designated as the free speech zonea space that needed to be booked 30 days in advance.
Graduates of California public universities found it hard to discuss affirmative action policies, as
administrators recently added such talk to a list of microaggressionssubtle but offensive
comments or actions directed at a minority or other nondominant group that unintentionally
reinforce a stereotype.

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January/February 2017

Hundreds of Universities are confining free speech now. This


includes through police and restriction to free speech zones.
Burleigh, Nina. "THE BATTLE AGAINST HATE SPEECH ON COLLEGE CAMPUSES
GIVES RISE TO A GENERATION THAT HATES SPEECH." News Week. May 26,
2016. Web. December 05, 2016. <http://www.newsweek.com/2016/06/03/collegecampus-free-speech-thought-police-463536.html>.
More than half of Americas colleges and universities now have restrictive speech codes. And,
according to a censorship watchdog group, 217 American colleges and universitiesincluding
some of the most prestigioushave speech codes that unambiguously impinge upon free
speech. Judges have interpreted the First Amendment broadly, giving Americans some of the
most expansive rights of speech in the world. But over the past two decades, and especially the
past few years, American college administrators and many students have sought to confine
speech to special zones and agitated for restrictions on language in classrooms as well. To
protect undergrads from the discomfort of having to hear disagreeable ideas and opinions,
administrators and studentsand the U.S. Department of Educationhave been reframing
speech as verbal conduct that potentially violates the civil rights of minorities and women.

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AFF: Ban Free Speech Zones AC

January/February 2017

Prayer on campus has been limited via the use of free speech
zones.
Irby, Kate. "Clemson Official Tells Praying Man To Leave Because Its Not A free Speech
Area." The Charlotte Observer. August 31, 2016. Web. December 05, 2016.
<http://www.charlotteobserver.com/news/state/south-carolina/article98993982.html>.
Kyra Palange was walking across Clemsons campus last Thursday afternoon when she saw a
man sitting in a folding chair, with an empty chair sitting next to him. The Clemson grad student
walked closer to him and saw a sign on the empty chair that said PRAYER, according to the
Young Americas Foundation. I approached him and we sat down to pray for a few minutes,
Palange told Young Americas Foundation. When we finished, a man from the university
approached us and said he could not be praying there because it was not a designated free
speech area and presented the person who was praying with a form for the procedures for
applying for solicitation on campus. He told him he had to leave. Palange captured part of the
interaction on video. In it, a Clemson University official identified as Shawn Jones confirms to
Palange that the entire campus is not a free speech area. Clemson University spokesman Mark
Land told the College Fix that they did not ask the man to leave campus or interrupt his prayer,
and people are welcome to pray anywhere on campus. But individuals or groups not affiliated
with the university have to register certain activities so they can be conducted in appropriate
areas. In this case, the community member had posted a sign inviting people to pray with him
constituting, in the universitys view, a solicitation to join a gathering, Land said. As such, one
of our administrative staff members politely informed the individual of the process for obtaining
approval to hold such a gathering. We Roar Clemson, a free speech group on campus, is
planning to protest the policy on Friday, calling it unconstitutional. They will attempt to make it
seem like they are listening to our concerns, but all they will really do is treat us like children
that have to be manipulated and pacified while they continue to create and enforce arbitrary
policies, the group said in an email.

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January/February 2017

ACLU is in full support of free speech rights and is against


gestures that opt for a false solvency of free speech issues.
ACLU. "Hate Speech On Campus." January 01, 2016. Web. December 05, 2016.
<https://www.aclu.org/other/hate-speech-campus>.
Many universities, under pressure to respond to the concerns of those who are the objects of hate,
have adopted codes or policies prohibiting speech that offends any group based on race, gender,
ethnicity, religion or sexual orientation. That's the wrong response, well-meaning or not. The
First Amendment to the United States Constitution protects speech no matter how offensive its
content. Speech codes adopted by government-financed state colleges and universities amount to
government censorship, in violation of the Constitution. And the ACLU believes that all
campuses should adhere to First Amendment principles because academic freedom is a bedrock
of education in a free society. How much we value the right of free speech is put to its severest
test when the speaker is someone we disagree with most. Speech that deeply offends our
morality or is hostile to our way of life warrants the same constitutional protection as other
speech because the right of free speech is indivisible: When one of us is denied this right, all of
us are denied. Since its founding in 1920, the ACLU has fought for the free expression of all
ideas, popular or unpopular. That's the constitutional mandate. Where racist, sexist and
homophobic speech is concerned, the ACLU believes that more speech -- not less -- is the best
revenge. This is particularly true at universities, whose mission is to facilitate learning through
open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where
all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the
open, people can see the problem. Then they can organize effectively to counter bad attitudes,
possibly change them, and forge solidarity against the forces of intolerance. College
administrators may find speech codes attractive as a quick fix, but as one critic put it: "Verbal
purity is not social change." Codes that punish bigoted speech treat only the symptom: The
problem itself is bigotry. The ACLU believes that instead of opting for gestures that only appear
to cure the disease, universities have to do the hard work of recruitment to increase faculty and
student diversity; counseling to raise awareness about bigotry and its history, and changing
curricula to institutionalize more inclusive approaches to all subject matter.

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January/February 2017

Silencing speech in the face of unconditional inclusion


increases bureaucracy on campuses and quenches debate
before it starts.
Tolhurst, Michael. "The Spirit Of Free Expression And Its Erosion On Campus." Koch Institute.
August 16, 2016. Web. December 05, 2016. <https://www.charleskochinstitute.org/spiritfree-expression-erosion-campus/>.
Even though speech codes are often adopted to remedy particular ills (e.g., to ensure that
students from minority groups feel welcome), the cost to free expression can be significant.
Particularly if one considers, as Lukianoff does, that administrators are often too eager to use
speech codes to silence dissent that criticizes their actions. Combine this with the oftenOrwellian world of the campus disciplinary system, which frequently lacks any sort of due
process, and one arrives at a state of affairs much worse than the problem the code was meant to
address. As these proceedings are opaque and carry significant consequencesranging from
suspension to expulsionthe potential harm to a students future is severe. Another danger is
the merging of a culture that promotes diversity at all costs with an ever-expanding campus
bureaucracy. This has resulted in residence life programscurricula taught by campus
administrators in residence and dining hallsthat seek to inculcate certain norms, but not in a
fashion that fosters open debate. The demand for equality has also led some campuses to require
that student groups be open to alleven to those whose beliefs are fundamentally at odds with
the groups purpose. This undermines students ability to freely associate within the civil society
that is a campus community.

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AFF: Ban Free Speech Zones AC

January/February 2017

Free speech zones are meant to relegate protest and politics


to a tiny portion of campus.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
Free speech can occur anywhere on campus... But protests or other political activity must stay
in the free speech zones ...6 The Orlando Sentinel thus paraphrased the president of a public
university explaining the universitys policy of limiting protest activity to four designated areas
on campus...7 Prior to a federal court ruling in a lawsuit brought by students,8 Texas Tech
University designated a twenty-foot-wide gazebo capable of holding no more than forty people
as the sole free speech zone on campus.9 Western Michigan University ordered a protestor to
move to a protest zone that was 150200 yards away from the presidential motorcade route
and behind a campus building.10After watching several hundred people occupy his former
location, the protestor attempted to return and was arrested.11 Such is the existence of free
speech on many public college and university campusescontained, captured, and zoned away
from its intended recipients.
*Ellipsis from source

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AFF: Ban Free Speech Zones AC

January/February 2017

Free speech zones bleed off campus, they have been adopted
as a means to constrain politics in the community at large.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
Yet free speech zones have moved beyond the boundaries of the college and university campus
and can now be found in the realm of public politics, from the municipal through the national
level. A public library in Mesa, Arizona, confined protestors, even silent ones, to a free speech
zone the size of a parking space and set against a wall behind a bike rack.12 In 2002, a
Pennsylvania man was arrested and charged with disorderly conduct for refusing to move to a
free speech zone behind a fence during an appearance by the President, even though supporters
were allowed outside the free speech zone cage and closer to the rally.13 In a similar incident,
a South Carolina man was arrested during a presidential visit and prosecuted under a law that
prohibits entering a restricted area around the president of the United States; he refused to go
to a free speech zone half a mile away after he noticed that supporters of the President were
allowed to stand outside the protest zone and closer to the President.14 Individuals in Iowa
wearing shirts and buttons supporting rival presidential candidate John Kerry were barred from
attending, and some were arrested, during public campaign events for President George W.
Bush; one ticket- holder wearing a satirical Bush campaign button at another event was forced to
stand behind a wall of Secret Service agents and prevented from asking any questions.15These
instances show that the free speech zone has obviously been recognized as an effective means of
isolating First Amendment activity that those in positions of authority consider disruptive.

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AFF: Ban Free Speech Zones AC

January/February 2017

Free speech zones are meant to reduce dissent, this implies


that the dissenters view point is meant to be contained.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
The problem with designating areas as free speech zones and restricting speech to those areas is
twofold. The first problem arises when the free speech zone is used to capture dissenting speech
and expressive activity while all other First Amendment activity is permitted outside the
zone. This situation results in content discrimination, viewpoint-based discrimination, or both,
for which existing First Amendment jurisprudence can be applied with no difficulty to reach a
just solution.26 Though this method of restricting protest speech has found new life after
September 11, 2001because security interests normally asserted by the government, such as
maintaining public access to an area or preventing property damage, have been further bolstered
by fears of terrorism27there has been no indication that the courts would uphold such
discrimination by the government.

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AFF: Ban Free Speech Zones AC

January/February 2017

Free speech zones chill open discourse outside of the zone by


narrowly constraining means of communication.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
The second and more dangerous problem with free speech zones occurs when all speech is
restricted to the zone and communication outside of it becomes effectively impossible.28 The
difficulty that arises in this situation is that, because all expressive activity is confined to the
zone, the regulation is viewpoint and content neutral, meaning it need only pass an intermediate
level of scrutiny to be upheld as a valid restraint on First Amendment expression.29 This
standard requires narrow[] tailor[ing] to serve a significant governmental interest, and [the
availability of] ample alternative channels for communication of the information.30 Yet,
instead of applying the intermediate level of scrutiny the law requires, courts sometimes become
extremely deferential to the security concerns of the government, especially when facing severe
time constraints that might make it dangerous to invalidate any aspect of the governments
security plan.31 Under such constraints, judicial scrutiny may effectively disappear, and First
Amendment activity may end up being completely contained to a location that, for all practical
purposes, results in silence.
*Ellipsis from source

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AFF: Ban Free Speech Zones AC

January/February 2017

A particular issue with free speech zones arises when they


require prior permission to use.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
A recent university free speech zone ruling, however, seems more cognizant of the dangers that
often accompany designated free speech zones on public college and university campuses. Texas
Tech University designated a gazebo near the student union as the only campus free speech
area that did not require prior permission for student usea policy that was challenged by a
student who wanted to leaflet elsewhere on campus.59 During the course of litigation, Texas
Tech changed its policy and designated several other forum areas but still required prior
permission to engage in free expression activities outside the designated areas.60 The court
found that the designated free speech areas did not justify restricting speech by requiring prior
permission to engage in First Amendment activity at other campus areas the court determined to
be public forums.61 Designating free speech areas on campus was an overbroad regulation that
created a chilling effect on speech, and the court stressed that even under a content-neutrality
analysis, restricting speech to only the designated zones would be unconstitutional as to the other
public forum areas of the campus.62 The court recognized and invalidated the dichotomy of this
protest zone type of scheme whereby speech was confined to certain areas when it normally, and
legally, should be allowed in others as well.63

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January/February 2017

Free speech zones in essence null free speech because they


make the communication barrier impossible to cross.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
Therefore, the one sure way for a free speech zone to be unconstitutional is for it to create an
impenetrable barrier to communication.226Anyone outside the free speech zone, under such
circumstances, would have significant difficulty in approaching to actually converse with the
speaker about his or her beliefs; or, if the free speech zone is extreme enough, those outside the
free speech zone may not even know who or what is occurring inside the free speech
zone.227 Because the demonstrators at the conventions could not actually follow conventiongoers into the actual convention sites if they were having a conversation, those desiring to
converse with anyone inside the free speech zone likely would have to find a way to enter the
zone itself. The feasibility of a convention invitee or other important official even being allowed
to enter a free speech zone by security personnel is doubtful. After all, if the asserted purpose of
the free speech zone is to protect persons deemed important by the government, it is highly
unlikely those in charge of security would permit the protected person or persons to then enter
the zone.

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January/February 2017

Free speech zones are a way to silence citizen dialogue and


halt the spread of ideas.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
This Note has attempted to elucidate the issues associated with determining the constitutionality
of regulatory schemes utilizing speech zoning. The great danger of any government imposed free
speech zone is that it may deny citizens within it the basic ability to communicate in a
meaningful manner with anyone outside of the zone. The zone can become a cage that restricts
all dialogue to the point of effective silence and stymie the marketplace of ideas that is essential
to a free and democratic society. This Note does not, and cannot, provide an answer to the
constitutionality of free speech zones in an abstract or general sense. Not all free speech zones
impose the same conditions on citizens or are necessitated by the same set of circumstances.
Consequently, this Note has highlighted some of the difficulties the justice system faces in free
speech zone cases and attempted to elucidate some inquiries and analytical considerations to take
when examining the constitutionality of a free speech zone type of regulatory scheme. In this era
of heightened tension between security concerns and civil liberties, it is important that the public
dialogue not be lost behind a shield of protection. Even the most benignly intended shield of
security can quickly and quietly become an impenetrable cage from which the expressive rights
guaranteed by the First Amendment may never escape. This Note has attempted to provide some
guidance regarding how to effectively navigate this delicate balance in a manner that allows the
government to protect citizens without doing harm to their First Amendment rights guaranteed
by the Constitution.

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January/February 2017

Difficult interpretations of the First Amendment make free


speech zones hard to adjudicate.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
Under current principles of First Amendment jurisprudence, there is no per se answer as to the
constitutionality of government imposed speech zoning schemes.156 The concept of a free
speech zone is too amorphous for a court to rule on in the abstract, and can only be ruled on if a
complainant is able to demonstrate a threat of real and immediate injury to First Amendment
rights such that an injunction could be granted pending determination of the constitutionality of
the issues in the specific case.157 Thus, some of the difficulty in challenging a government
imposed free speech zone stems from the very process in which it is imposed.158 Absent
evidence of past conduct applicable to the circumstances of the case, until the government
releases the security plans for any major government event, potential plaintiffs may be unable to
obtain the requisite standing to challenge the constitutionality of any free speech zone that might
be imposed.159 Security plans must be available for the court to examine in order to determine
whether plaintiffs would be immediately in danger of sustaining some direct injury.160 Even
when the government releases security plans to the public significantly ahead of major events,
the time spent preparing the lawsuit may still mean that the lawsuit will not come before the
court with sufficient time to significantly change the security plans without delaying the event
itself.161




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January/February 2017

Eliminate Expenditure Limits Plan



This aff is really interesting. Youd argue that colleges and universities should not

establish any spending limits on campaigns for student government. This aff assumes that
campaign spending is constitutionally protected speech, which was established under Buckley v.
Valeo (1976) and re-affirmed in Citizens United v. FEC (2010). The best argument for this aff is
simply constitutionality. You would argue that the logical implication of these two Supreme
Court decisions is that colleges cant place expenditure limits on student government elections.
In my research, I didnt really find a good non-legal argument for why student-run campaigns
should get to spend unlimited sums of money. So, this route is best.
The plan should have the Supreme Court rule that these expenditure limits are
unconstitutional under the First Amendment. The best framework to read is that the Supreme
Court should faithfully adhere to its previous precedent. This is the principle of stare decisis. So
long as you argue that the Court should strictly adhere to this principle, you can prove that the
Court should decide consistently with Buckley and Citizens United even if those decisions may
have had undesirable consequences (in my opinion, they definitely have).
The best negative argument is that ending these expenditure limits would make it
considerably harder for poor students to participate in student elections. Theyll get out-spent by
affluent kids who have their parents money to bankroll a campaign. Of course, to beat this aff,
the negative would also have to argue against stare decisis and explain why Buckley and Citizens
United rely on flawed understandings of free speech. You should cut cards from the dissenting
opinions in these cases to prove your argument here. I dont think the best negative strategy here
is to say that the Constitution is bad, or that constitutionality shouldnt be the framework, simply
because it doesnt seem persuasive to say that the Supreme Court, of all institutions, should just
ignore legal precedent in favor of a revolutionary alternative. I suppose if you were to kritik the
Court itself, you could make this argument. But you have to make sure youre arguing the state is
bad and that we need a bottom-up, revolutionary politics that doesnt place hope in SCOTUS
decisions.

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January/February 2017

Expenditure limits aren't substantially related to the school's


purpose of encouraging academic success.
Powers, David. "The Constitutional Implications Of Expenditure Limits In Student Government
Elections." College Student Affairs Journal. January 01, 2009. Web. December 07, 2016.
<https://www.questia.com/library/journal/1P3-1965539011/the-constitutionalimplications-of-expenditure-limits>.
In regards to the first interest, that the restriction equalizes socio-economic differences between
students, the court rejected it under reasoning put forth in Buckley. The court wrote that the
Buckley decision stands for the proposition that the desire to equalize the financial resources
available to candidates does not justify the [campaign finance] limitation (Welker, 2001, p.
1065). Secondly, the court rejected the interest that the restriction encouraged students academic
pursuits, because they found that the spending restriction was not narrowly tailored to [that]
interest (Welker, 2001, p. 1065-1066). Further, the court found that the expenditure limit was
not related in any substantial sense to its contended purpose of encouraging academic success,
because managing a creative campaign (another of the schools alleged interests) takes just as
much of the students time as seeking financial contributions (Welker, 2001, p. 1066). The court
also found that the interest of prohibiting undue corporate influence was not narrowly tailored,
because corporations could always endorse a specific candidate, which could have the same
influence as a financial contribution (Welker, 2001, p. 1066). Finally the court rejected the
universitys contention that the restriction would foster creativity among students. The court
found that the limitation was not narrowly tailored, and purported that it did not see the link
connecting the cap on expenditures and fostering student candidate creativity in the election:
There is no reason to believe that the ability to raise and spend more than $100 would thwart
candidates creativity. In fact, the potential to spend more than $100 on a campaign likely would
open up channels of communication that might not otherwise be available to candidates who are
limited to spending $100. Thus, the expenditure restriction has the potential to stifle, not to
foster, candidates creativity (Welker, 2001, p. 1066). The Welker decision was a victory for free
speech advocates. However, that victory was short-lived, as Welker was overruled by the holding
in Flint.

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A2 Expenditure Limits Bad: The school's educational


interests outweigh the free speech interests of student
campaigners.
Powers, David. "The Constitutional Implications Of Expenditure Limits In Student Government
Elections." College Student Affairs Journal. January 01, 2009. Web. December 07, 2016.
<https://www.questia.com/library/journal/1P3-1965539011/the-constitutionalimplications-of-expenditure-limits>.
However, Flint rejected the student plaintiffs assertion that Buckley was controlling in its case,
because the court found that the educational interests [of the University of Montana] outweigh
the free speech interests of the students who campaigned within that limited public forum (Flint
v. Dennison, 2007, p. 820). Similarly, the court distinguished its case, which involved an election
to student government, from the decision in Buckley, which was an election to a federal office.
The court focused on this distinction, writing that [t]he educational context of a university [and]
the specific educational purpose of [] student government distinguish this case from Buckley
(Flint, 2007, p. 827). The court also contended that student government does not have the same
effect on students lives as a civil government has on its citizens (Flint, 2007, p. 827). As a
result, Flint determined that student government officers are not equivalent to federal, state,
county, or city elected officials, and thus held that Buckley should not apply.

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A2 Expenditure Limits Bad: Expenditure limits for student


campaigns teach students valuable campaigning and
persuasion skills.
Powers, David. "The Constitutional Implications Of Expenditure Limits In Student Government
Elections." College Student Affairs Journal. January 01, 2009. Web. December 07, 2016.
<https://www.questia.com/library/journal/1P3-1965539011/the-constitutionalimplications-of-expenditure-limits>.
The university presented one main justification for the spending limit it imposed. The school
contended that the main intent of the limits is to prevent student government [] from being
diverted by interests other than ones educational (Flint, 2007, p. 835). The court accepted the
schools contention, and asserted its own analysis: Imposing limits on candidate spending
requires student candidates to focus on desirable qualities such as the art of persuasion, public
speaking, and answering questions face-to-face with ones potential constituents. Students are
forced to campaign personally, wearing out their shoe-leather rather than wearing out a
parentsor an activist organizations pocketbook (Flint, 2007, p. 835).

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January/February 2017

A2 Expenditure Limits Bad: Unlimited spending in student


government elections means that student elections no longer
become a learning experience.
Powers, David. "The Constitutional Implications Of Expenditure Limits In Student Government
Elections." College Student Affairs Journal. January 01, 2009. Web. December 07, 2016.
<https://www.questia.com/library/journal/1P3-1965539011/the-constitutionalimplications-of-expenditure-limits>.
In addition, the University President asserted further justification for the limits: Unlimited
spending in [student government] elections also would change the nature of the election process
as a learning experience. The spending limits mean that students have to figure out no-cost or
low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than
just dumping a lot of money into advertising materials at the last minute. They have to make
decisions about allocating their resources effectively. Without spending limits, the well-off
students would not have to face these constraints or make these kinds of decisions in the course
of running for [student government] (Flint, 2007, p. 835).

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A2 Expenditure Limits Bad: Unlimited spending in student


campaigns undermines accessibility for low-income students.
Student government elections should be based on thoughtful
ideas, not money.
New University. "Spending Caps Stop The Arms Race.". May 04, 2009. Web. December 07,
2016. <http://www.newuniversity.org/2009/05/opinion/spending_caps_stop_the188/>.
On April 20, the New University published an editorial entitled, Paying to Play: Buying the
ASUCI Presidency, in which the Editorial Board argued for spending caps in ASUCI elections.
We stand behind that editorial. Without spending caps, election campaigns have become caught
in an arms race, with each candidate forced to spend ridiculous amounts of money in order to
remain competitive. This leaves students who dont have large amounts of funding behind.
ASUCI campaigns should be fueled by thoughtful proposals and ideas, not by money.

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A2 Expenditure Limits Bad: Ninth Circuit case proves-student government expenditure limits do not violate free
speech.
New University`. "Spending Caps Stop The Arms Race.". May 04, 2009. Web. December 07,
2016. <http://www.newuniversity.org/2009/05/opinion/spending_caps_stop_the188/>.
On the other hand, in 2007, the Ninth Circuit Court of Appeals, the same court that would have
heard the Welker case had UCI decided to appeal, upheld student election spending caps at the
University of Montana. The University of Montana, unlike UCI, decided to appeal a lower
courts decision to overturn its $100 spending cap, the same amount as the UCI cap. In Flint v.
Dennison, the Court dismissed Welker v. Cicerone, saying that its application of Buckley v.
Valeo, the 1972 Supreme Court case that ruled money a form of constitutionally protected free
speech, was mistaken. Valeo does not apply to school campaigns, even those at public
universities. Unlike Judge Timlin, the Court wrote that in its opinion, we see the several
differences between the [Associated Students of the University of Montanas] elections and
state and national political elections and therefore have no trouble making such a distinction.
The Court found that student government is not equivalent to federal and even state and local
government. Student government is unique; it exists and operates in a different environment. A
university like the University of Montana uses student government primarily as an educational
tool a means to educate students on principles of representative government, parliamentary
procedure, political compromise and leadership. Student governments ultimately exist at the
discretion of the Regents. They are already regulated in ways that other elections are not. For
example, under section XIV of ASUCI Elections Code, candidates must have, among other
requirements, a Grade Point Average of at least 2.0. Executive officers must have junior
standing. These requirements, though perfectly acceptable and legal in ASUCI elections, would
likely be unconstitutional outside of the university setting. The Supreme Court refused to hear an
appeal filed by the plaintiff. Thus, the Courts decision stands and spending caps in student
elections are, in fact, not a violation of a candidates constitutional free speech and free assembly
rights.

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A2 Expenditure Limits Bad: Spending caps make the


election process better for the majority of students.
New University. "Spending Caps Stop The Arms Race.". May 04, 2009. Web. December 07,
2016. <http://www.newuniversity.org/2009/05/opinion/spending_caps_stop_the188/>.
The fact is that universities have legitimate reasons for enacting spending limits. That is why
many other schools, including UC Berkeley, already have them. Limiting the influence of money
in a student election means that, as Judge Carlos T. Bea said, Students are forced to campaign
personally, wearing out their sho[e]-leather rather than wearing out a parents or an activist
organizations pocketbook. As long as they apply equally to everyone running, spending caps
do not violate the Constitution. UCI should not let the threats of a litigation-happy few,
especially when their claims have little grounding in legal case law, prevent us from making the
election process better for the vast majority of students.

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102

AFF: Fight. Oppressive Structures AC



January/February 2017

Fighting Oppressive Structures AC


This possible AC makes the argument that free speech is needed in order to combat

oppressive structures. One way to make this argument is through the lenses of free speech being
key to check back against the US government. This argument should be effective as it allows you
to claim more long term solvency by influencing adverse practices the US government employs.
To do this, one of the key pieces of evidence will be the Richard Kahn evidence that argue the
US government limits free speech on university campuses by arresting and framing
environmentalists. This argument is persuasive because it takes into account a not commonly
considered form of government oppression in the realm of free speech. Additionally, it allows
you to claim that more free speech will benefit the passage of environmental policies. Another
way to make this argument is with the Tariq Khan evidence because it lets you argue that free
speech gives colleges a way to check back against US imperialism. This path lends itself to a
framework of upholding the social contract because it gives the people of the US government a
way to check back against governmental power creep. Another framework choice would be
consequentialism because it allows you to focus on the consequences of combating the
government more than the risk of hate speech that may ensue with free speech. The next path
that this contention could take is with the Bryant William evidence. This evidence argues that in
order to best fight oppressive forms of speech we need to have completely free speech as it gives
civilians the best opportunity to combat dissenting hateful speech. A deontic framework would
function well with this claim because it allows you to make arguments justifying free speech
because it allows all voices to be heard. However, this argument could easily be framed under
consequentialism as well because William argues that this free speech creates a way to reform
democracy in America.

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January/February 2017

Free Speech on college campuses is key to challenging US


imperialism.
Khan, Tariq. "Masking Oppression As Free Speech: An Anarchist Take." Agency. October 28,
2015. Web. December 08, 2016.
<http://www.anarchistagency.com/commentary/masking-oppression-as-free-speech-ananarchist-take/>.
In the present-day United States, a shallow idea of free speech is often wielded by the
privileged as a way to direct attention away from critiques of existing conditions and systems;
particularly critiques of capitalism, imperialism, white supremacy, and patriarchy. For example,
two years ago when UC Berkeley students organized to keep comedian Bill Maher from
speaking on their campus, leading media outlets framed it as a controversy about free speech
rather than engaging with the much deeper critiques the students had about Mahers perpetuation
of US imperialist, Orientalist discourse which fuels militarism abroad and racist violence at
home. Yet, while students who protest imperialist discourse are characterized as a threat to free
speech, the actual threat to free speech in academia goes unchallenged by leading media
outlets. October 8, 2015, at the Community College of Philadelphia, English professor Divya
Nair spoke at a rally organized by students in protest of police recruiters on campus. The
students and Professor Nair drew connections between colonialism and modern US policing;
particularly the police tactic of recruiting poor people of color to act as the capitalist states footsoldiers to control poor Black and Brown communities. Later that day, school authorities
suspended Professor Nair without pay, and they have since suspended three student group
members who are facing disciplinary hearings. In the past few years there has been a noticeable
campus crackdown on anti-colonialist expression.

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104

AFF: Fight. Oppressive Structures AC

January/February 2017

Free Speech is key to checking oppressive power structures.


Khan, Tariq. "Masking Oppression As Free Speech: An Anarchist Take." Agency. October 28,
2015. Web. December 08, 2016.
<http://www.anarchistagency.com/commentary/masking-oppression-as-free-speech-ananarchist-take/>.
The flawed notion that overly-sensitive PC students are shutting down free speech is harmful.
Student initiatives on campuses to challenge things such as racial or gender micro-aggressions
are not challenges to free speech and they are not based on the idea that micro-aggressions are
offensive. Micro-aggressions must be challenged because they are oppressive, not because
they are offensive. Racist speech leads to an environment that is conducive to racist violence. It
marginalizes students of color and makes the university not uncomfortable, but unsafe. AntiLGBT speech makes campus unsafe, not merely uncomfortable for LGBT students.
Misogynist speech creates an environment that is conducive to sexual assault. Any decent social
scientist knows this. It is not about people being uncomfortable or offended. It is about
people being unsafe and oppressed. White frat boys would have us believe that they are being
unfairly silenced because women and people of color dont laugh at their misogynistic or racist
jokes, meanwhile anti-colonialist and anti-imperialist students and professors face actual
repression from law-makers, wealthy donors, campus administrators, police, and vigilantes. The
same foolish people who boycott stores for saying Happy Holidays instead of Merry Lord
Jesus God Almighty and the Bible Christmas! complain that Black students fighting against
actually-existing racial violence are oversensitive. The threat to campus free speech and
academic freedom is not anti-racist or feminist students. The threat to free expression in
academia is real, and it is coming down the social hierarchy from rich and powerful
establishment interests, not upward from coddled students. The beautiful ideal of free
expression is cheapened when oppression is allowed to go unchecked under the guise of a
disingenuous notion of free speech.

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January/February 2017

Restricting the speech of some is injustice and is oppressive.


Mitchell, Don. "The Liberalization Of Free Speech: Or, How Protest In Public Space Is
Silenced." Stanford Angola. April 01, 2016. Web. December 08, 2016.
<http://agora.stanford.edu/agora/volume4/articles/mitchell/mitchell.pdf>.
To the degree that the state has learned or been forced to restrain itself from regulating just
what is said and thought, some rather large (if still tenuous) victories have been won. It is quite
possible that a Debs or a Schenk would not now be prosecuted (though an Arab equivalent of a
Frohwerk might still be quickly spirited away). But these victories have been steadily eroded
through a new legal regime in which courts, rather than Congress, have taken the lead in
abridging the rights to speech and assembly by assiduously segregating speech and protest, by
zoning it, so that its very effectiveness can be minimized and perhaps eliminated. It is clear that
in the U.S., the right to speak does no imply a right to even be potentially effective, to have a
chance to make a difference.168 Dissident speakers have to remain outside the mall that has
become the new public space of the city; they must remain at a distance from the politicians and
the delegates they seek to influence; they must picket only where they will have no chance of
creating a meaningful picket line. But no matter what the courts say and no matter how carefully
police and courts together draw the lines of protest, creating a geography of rights that can be
frankly oppressive, Seattle and later Quebec, and perhaps especially events in Genoa, have
shown that there are ways to transcend geography, to speak out loudly and insistently, against
those who would effectively silence protest in public space. The answer to this geography of
censorship will have to come through not a revival of civil protest, but of civil disobedience. For
only through civil disobedience will a liberal theory of speech and assembly ever be transcended,
and replaced with something far more progressive something concerned less with the truth of
the state, and more with constantly assuring its justness.

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AFF: Fight. Oppressive Structures AC

January/February 2017

Free speech is key to fight back against oppressive


governmental tactics to combat environmental legislation.
Kahn, Richard. "Operation Get Fired: A Chronicle Of The Academic Repression Of Radical
Environmentalist And Animal R." Antioch University. November 2016. Web. December
08, 2016.
<http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.492.988&rep=rep1&type=pdf
>.
In closing this section, attention must be paid to the manner in which higher education has now
treacherously allowed national security agencies to implode into its institutional makeup. While
offices like the CIA have recruited for years from select programs across the country, more
nefarious is the growing willingness on the part of university administrations to grant the FBI
field offices on campus and to entertain briefings from Special Agents as part of the FBIs
Academic Alliance College and University Security Effort program. More egregious still is
another FBI outreach effort that resulted in the creation in 2005 of the National Security Higher
Education Advisory Board. The FBI-led Board, which is chaired by Graham Spanier, President
of Pennsylvania State University, involves presidents and chancellors of 19 of the nations top
research universities as well as the president of the Association of American Universities.
According to the government, its mission is to serve the FBI with a means to open the doors of
understanding and cooperation with leaders in higher education on matters related to national
security, terrorism, counterintelligence, cyber threats, and certain criminal matters. 6 More
specifically, in his latest editorial Spanier (2008) listed Threats to faculty members and
university property by animal rights terrorists and eco-rights terrorists as one of the key issues
to be addressed of the Board. This is clear confirmation that American higher education is
actively supporting and complying with forces attempting to generate repressive policies against
the movement of radical environmentalists and animal rights advocates. As I have outlined in
this section, such repression can easily become aimed at scholars who focus on these movements
as well, which works in ways that serve to damage academias intellectual and civic mission

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107

AFF: Fight. Oppressive Structures AC

January/February 2017

Universities must be sites of democratic discourse to protect


the humanities from post neo-liberal assault.
Hyslop-Margison, Emery. "Post Neo-Liberalism And The Humanities: What The Repressive
State Apparatus Means For Universities." Canadian Journal of Higher Education. 2012.
Web. December 08, 2016. <http://files.eric.ed.gov/fulltext/EJ991958.pdf>.
The organization of presidents of Canadian universities recently issued a revised and
unanimously supported statement on academic freedom that undercut many of the advances
achieved by Canadian faculty over the past century (Canadian Association of University
Teachers [CAUT], 2011a). The Association of Universities and Colleges of Canada (AUCC)
statement removes the right of faculty to publicly criticize their institution and fails to recognize
that academic freedom must be respected across teaching, research, and service. In their response
to the AUCC statement, CAUT representatives James Turk and Wayne Peters correctly argued,
With the growing pressures on universities to compromise their defense of academic freedom in
the quest for financial support, we need a more expansive notion of academic freedom, not a
more restrictive one (CAUT, 2011a, p. A1). Rather than simply employing neo-liberal ideology
to limit Canadian universities as possible sites for democratic dissent, post neo-liberal attacks
tend to be far more aggressive and explicit in nature. At the University of New Brunswick, for
example, the institutions faculty association recently wrote an open letter to the university
president condemning the administrations attempt to prevent union organizing activities on
campus by incorrectly deeming them illegal (CAUT, 2011b, A9). Complicity and
acquiescence are unlikely to restore universities as sites for democratic discourse, and we must
therefore consider more forceful measures, as described below, to protect the humanities from
post neo-liberal assault

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108

AFF: Fight. Oppressive Structures AC

January/February 2017

Violating free speech creates an imbalance in political


power.
Kuznicki, Jason. "Attack Of The Utility Monsters The New Threats To Free Speech." Policy
Analysis. November 16, 2009. Web. December 08, 2016.
<http://www.thedivineconspiracy.org/Z5237A.pdf>.
Todays would-be censors often have extreme political views. Many come from the far right, the
far left, and radical Islam. Indeed, the new censors are so ideologically scattered that they will
probably never form an effective coalition. Yet their arguments are gaining ground, and they
bear striking similarities to one another despite their proponents deep differences elsewhere. In
each case, we are asked to weigh the right to free expression against the psychological hurt that a
particular expression may cause. Because the hurt is so great, we are told, the right should be
restrained. We are asked to find a balance between free speech and hurt feelings. This paper will
argue that any such balance is illusory, and that even today, the traditional remedies to
unwelcome speech remain effective: either dont listen, or reply with better speech of your own.
Free speech doesnt need anything else to balance it, because in a free society, we may always
balance bad speech with good speech. Attempting to balance free expression with
censorship leads to a serious imbalance in political power. The dynamics of this imbalance will
be examined.

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January/February 2017

A2 Free Speech Encourages Minority Discourse: Hate


speech undermines the speech of targeted groups.
Brax, David. "Ch. 16. Hate Speech And The Distribution Of The Costs And Benefits Of
Freedom Of Speech." Nordicom. August 01, 2016. Web. December 08, 2016.
<http://www.diva-portal.org/smash/get/diva2:1051578/FULLTEXT01.pdf#page=187>.
The aim of this chapter is to provide a rather straightforward argument in favour of hate speech
regulations. The argument is a highly general one, and as such can be applied in contexts
spanning from campus speech codes and media guidelines to criminal law and international
conventions and agreements (Such as the European Convention of Human Rights, and the
Council Framework Decision on Racism and Xenophobia). The argument is broadly
consequentialist: It is based on a cost-benefit analysis of restricted vs. unrestricted free speech.
The argument can be roughly divided into two parts. The first is the familiar point that hate
speech does harm by undermining the speech of targeted groups, which means that the utility
that free speech exists to serve is diminished. The second part takes into account the distribution
of these costs and benefits. The distribution of costs and benefits for allowing hate speech is
unlikely to be fair or equal. The harm caused by hate speech primarily befalls people that are
already among the worst off in our society. This, I argue, is a reason in favour of hate speech
regulations, even if there would be a net benefit in absolute terms for allowing such speech.
The argument thus depends on the intuition that equality has normative weight. It is, however,
not based on the egalitarian principle that equality has intrinsic value. It is based on the principle
that costs and benefits that befalls those worst off matters more. I argue that this normative
theory, known as prioritarianism or the priority view, offers the most plausible argument in
favour of hate speech regulations.

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January/February 2017

A2 Free Speech Combats Imperialism: Violations of the


First Amendment can be justified to combat cultural
imperialism.
Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
Justices lean heavily on past precedents in making decisions. Justices also bring their unique
cultural perspectives and views of established norms to their interpretations of past precedents
and laws. Cultural imperialism places a dominant groups culture at the center of society,
establishing it as the norm (Young, 1990). Societys values, goals, and experiences become
based on the norm created by the dominant group. Groups that are not dominant find themselves
defined using the standards of the dominant groups. Members of dominated groups internalize
the stereotypes placed upon them and also struggle with the feeling that they are being defined
by an external, unfamiliar set of values. A relevant example would be the origins of the
American system of government. The system is entirely European in influence, especially in
regard to John Lockes influence on Thomas Jefferson, who drafted the Declaration of
Independence and significantly influenced the ideas incorporated in the U.S. Constitution
(Cunningham, 1988; Lutz, 1984). The American judicial system started with colonial laws that
were imported from British common law (Pember & Calvert, 2011), which dates from 11th
century Europe. These examples are by no means a complete accounting of the formation of
American government, but they point out topic-appropriate examples of a dominant group
establishing norms, values, and goals to which many dominated groups have limited or no
historical or cultural connection. Young (1990) wrote that the dominant group brings other
groups under its structures, and those who fail to follow that dominant form are labeled as
inferior or deviant. Cultural imperialism is significant when considering the largely White and
male-dominated origins of American law, especially the First Amendment. The Bill of Rights
was penned during a time when only White, land-owning adult males could vote. It is worth
noting how traditionally dominated groups might struggle to function under the rules imposed
upon them. The struggle can come both from the laws being set up to support the majority, or
dominant culture, and the fact that another culture wrote the foundational rules in American
society. Judicial review scholar John Hart Ely (1980) noted the dangerous possibility that the
majority could set up a system of rules that benefit its members and help it to remain in power.
He argued that the government must include ways to protect dominated groups from being
mistreated while still protecting the democratic process. The diversification of higher education
certainly raises questions regarding the balance between fundamental American ideals, such as
those expressed in the First Amendment, and cultivating a safe learning environment for
students.

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January/February 2017

A2 Free Speech encourages activism: The Fear of Violence


from Hateful organizations needs to be reshaped.
Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
Another of the faces of oppression that Young (2010) outlined is violence. She emphasized the
structural nature of violence and its dual impactcausing literal violence to some and also the
fear of violence to many. Young (2010) wrote: The oppression of violence consists not only in
direct victimization, but in the daily knowledge shared by all members of oppressed groups that
they are liable to violation (p. 43). She noted that, historically, certain groups, such as women,
Blacks, Asians, Arabs, and LGTB people, have faced more threats of violence than members of
the dominant group. Violent acts include sexual assaults and less severe incidents that still
harass, intimidate, and ridicule oppressed social groups. The daily fear of violence informs the
way members of dominated groups live their lives. The fear changes both their outward behavior
and their inward thought processes, because they have to consider how to best hide their
oppressed identity (Zutlevics, 2002). Eisenberg (2006) wrote that eliminating violent oppression
requires changing the social structures that allow or encourage them to happen, while Zutlevics
(2002) added that, in many cases, certain violent acts are legitimized in so far as the perpetrators
of it are never reprimanded, nor is anyone surprised by its occurrence (p. 100). The preferred
protections bestowed on freedom of speech and expression in American society provide the
possibility that threatening language and ideas can be communicated to both dominant and
dominated groups. As two examples among many, the structural underpinnings of
violence/oppression and free speech come into contrast in Village of Skokie and Snyder v.
Phelps. In the first case, Village of Skokie v. National Socialist Party of America (1978), a Nazi
organization planned a march through Skokie, Illinois, a village that included about 5,000 people
who had family members who were persecuted by the Nazis (Smolla, 1992). The White
supremacist group planned to wear Nazi attire and to display swastikas. Skokie village filed a
suit against the organizations petition to march, and the Cook County Circuit Court entered an
injunction against the Nazi group. The village also quickly passed a series of ordinances
outlawing material that could encourage or incite hatred against people because of their race,
national origin, or religion. The Illinois Supreme Court found that the Nazi group could not be
stopped from holding its march or displaying the swastika. The court wrote: It is firmly settled
that under our Constitution the public expression of ideas may not be prohibited merely because
the ideas are themselves offensive to some of their hearers and it is entirely clear that the wearing
of distinctive clothing can be symbolic expression of a thought or philosophy. The symbolic
expression of thought falls within the free speech clause of the first amendment and the plaintiff
village has the heavy burden of justifying the imposition of a prior restraint upon defendants
right to freedom of speech. (Village of Skokie, 1978, p. 612) In so ruling, the court placed the
cherished structural values of free speech and expression above protecting a dominated group
from violence. More recently, the Supreme Court decided Snyder v. Phelps (2011). The case
focused on Westboro Baptist Churchs right to communicate its antihomosexual message by

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Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
picketing at the funerals of American soldiers who were killed in Iraq and Afghanistan. The
Westboro protestors carry signs with messages such as Fags Doom Nations, God Hates
Fags, Fag Troops, and Semper Fi Fags. The Supreme Court decided, in an 81 vote, that
the First Amendment protected Westboros speech. In the majority opinion, Chief Justice John
Roberts wrote: Westboro believes that America is morally flawed; many Americans might feel
the same about Westboro. Westboros funeral picketing is certainly hurtful and its contribution to
public discourse may be negligible. But Westboro addressed matters of public import on public
property, in a peaceful manner, in full compliance with the guidance of local officials. The
speech was indeed planned to coincide with Matthew Snyders funeral, but did not itself disrupt
that funeral, and Westboros choice to conduct its picketing at that time and place did not alter
the nature of its speech. (p. 1220) Robertss opinion emphasized the structural values of free
speech and exchanges of ideas over protecting people in an oppressed position from what Young
(2010) defined as violence, such as harassment and intimidation. Young argued that violence is
institutional because in many situations it is encouraged or tolerated. Violence is woven into our
society, Young (2010) wrote: Group-directed violence is institutionalized and systemic to the
degree that institutations and social practices encourage, tolerate, or emable perpetration of
violence against members of specific groups (p. 44). She noted that change must come through
cultural images and how dominance is reproduced in everyday life.

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A2 Free Speech Reduces Violence: Universities must restrict


some speech to reduce violence placed on the oppressed.
Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
As the Baker case illustrated, the shift to the network society multiplies the challenges that
higher education administrators face when trying to preserve First Amendment freedoms and
also to protect the educational environment from disruptive and oppressive communication
(Finn, 2004; Kaplin & Lee, 2006). Delgado (1998) captured the challenges universities face
when he wrote: When a university proposes a speech code to protect some of the most
defenseless members of societyblack, brown, gay, or lesbian undergraduates at dominantly
white institutions (p. 871), the ideas are rejected as being unconstitutional. He continued:
Racism is a classic case of democratic failure; to insist that minorities be at the mercy of private
remonstrance against their tormentorsand that the alternative is censorshipis to turn things
on their head (p. 871). What Delgado is questioning is the ability of the marketplace of ideas to
truly produce an environment where every idea has an equal chance to compete for acceptance.
Universities can create regulations to limit speech that is not protected by the First Amendment,
such as defamation, obscenity, false advertising, and true threats (Kaplin & Lee, 2006). But the
courts have relatively limited views regarding what messages are considered truly threatening
(Brandenburg v. Ohio, 1969; United State v. Alkhabaz, 1997; Watts v. United States, 1969).
Universities also have limited control over how students use personal electronic devices to
communicate threatening messages using external forums, such as Facebook or Twitter. It is for
these reasons that this exploratory article has gone beyond a retelling of case law and university
policies to consider the underlying theories behind the delicate balance between simultaneously
upholding free speech and protecting students from oppression. The Baker case represents a clear
conflict between free speech and limiting oppression. The free speech rights supported by the
judges allowed the continued oppression of a young woman who had done nothing to ask for the
harassment and intimidation she was subjected to by Jake Baker. The rights the judges protected
also contributed little if anything to the self-governance of members of the democratic society
that the First Amendment was created to protect. Instead, the cases outcome fit Youngs (2010)
definition of violenceviolence made possible by cultural imperialism and the domination by
the importation into the present of past values of a dominant group. The Baker case offers a
cautionary tale for university communities. While legal action might not limit oppressive speech,
universities have other tools available to them. The case highlights the fact that universities have
an opportunityeven an obligationto work in the safer territory found between the
problematic polar extremes of allowing unfettered online oppression as seen in Baker and
squelching free speech. The safe area requires a posture of proactive thinking on the part of
leaders within university communities (Finn, 2004). The space between the unattractive polar
opposites of this issue creates opportunities for three key areas of action: educational efforts,
safety measures, and the employment of the very technology that has created this challenge. The
three areas, ideally, work together. Education, in the context of this discussion, boils down to

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Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
using information and communication to foster a campus environment that focuses on the
awareness and acceptance of diversity. Universities provide varying levels of educational
programs regarding diversity. These programs, while valuable, are not a focus of this article.
Possible fruits of the conceptual ideas considered here would include strong, concerted, and
relevant online programs regarding diversity awareness. Essentially, campus leaders should
employ the same tools that can disrupt the university environment to encourage and cultivate an
atmosphere of openness, understanding, and acceptance

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A2 Fighting Oppressive Structures AC: Universities must


strike a balance between absolute freedom of speech and
allowing too much restriction- Some moderation is key.
Scott, Peter. "Free Speech And political Correctness." European Journal of Higher Education.
September 27, 2016. Web. December 08, 2016.
<http://www.tandfonline.com/doi/abs/10.1080/21568235.2016.1227666?journalCode=re
he20>.
Two conclusions can be drawn from the impact of these changes on the tone of the debate about
free speech and political correctness. The first is that there are, and never have been, any
absolutes. No society has ever granted its citizens unrestricted freedom of speech. No campus,
although the university should offer a space where this freedom is exercised up (and even a little
beyond) these legally imposed and socially mandated limits, can agree that anything goes. On
the other hand, although sensitivities and vulnerabilities should be respected, there are clearly
limits of the extent to which they can be indulged if free and vigorous intellectual enquiry is in
danger of being seriously inhibited. So the best approach is a pragmatic one, to balance free
expression with mutual respect case-by-case. The one depends on the other; these are not
contrary principles. The second is that universities are, or should be, exceptionally well placed to
strike this balance. It is also more vital they do so than almost every other kind of institution, the
arts possibly excepted. Free expression, in the shape of critical enquiry not aggressive attacks, is
a core value in the academy. A university education designed to produce not simply technical
experts but also critical citizens depends upon it. So too do a progressive science and enlightened
scholarship. Sadly university leaders have not always insisted on this, although more often their
compromises have been made to appease powerful political and business interests rather than
political campaigns by their students (where temporary and tactical retreats have too often been
the standard response). But moderation in language, and mutual respect within an academic
community, are also core components of a college and university experience although they
should not be invoked too often to protect the thin-skinned or accidentally promote those bent on
censorship. Again, too often perhaps, advocates of political correctness have played micropolitics in pursuit of symbolic causes that bear only the loosest of relationship to the practice of
contemporary higher education. For example, a better target than a long-dead US President or
British imperialist is the lengthening list of individual and corporate sponsors on which too many
universities, and in particular the most elite, depend

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A2 Free Speech Combats Racism: To combat racism, we


must interrogate what racism is not focus on free speech.
Garcia, Edelmira. "Perpetuating Racism Through The Freedom Of Speech." Center on
Democracy in a Multiracial Society. Ch. 5. Pg. 79. 2010. Web. December 08, 2016. <
http://www.academia.edu/958890/Strategies_for_Achieving_Diversity_in_Urban_Planni
ng_A_Case_Study_at_the_University_of_Illinois>.
Undoubtedly, there are challenges that will arise when trying to create a campus climate that
supports diversity and freedom of speech, as well as eliminates racism. There will also be
resistance from community members, particularly those who feel that new campus policies make
them feel uncomfortable and challenge their beliefs, or even threaten the privilege they receive
from a culture of silence. However, it is important for the university to remain firm in its stance
and continue to advocate for an inclusive community. The University of Delaware was recently
forced to end its programs in residence halls that allowed students to discuss and reflect on issues
such as diversity in race, sexuality, and morality, due to resistance from students who did not feel
comfortable with the situation and some of the topics that arose. The administration at the
University of Delaware has not given up on its goal to continue educating students on pertinent
issues (Hoover, 2007). Instead, they aim to learn from their mistakes, reform their program, and
continue to foster an inclusive community in their campus. This is an important lesson. The
University of Illinois at Urbana-Champaign continues to struggle with issues related to racism
and freedom of speech, with both the student body and administrators needing to work toward
the elimination of the culture of silence and practices of discrimination and prejudice. As it
moves forward as an institution, UIUC also needs to contemplate whether it really wants to
maintain a corporate atmosphere that views its students as commodities and diversity as a
marketing campaign. As numerous studies have shown, leaving racism unaddressed has a dire
effect on students as individuals, as well as their academic performance, giving universities an
incentive to improve their campus climate and protect their students. The selective interpretation
and enforcement of the freedom of speech to benefit certain students over others is no longer
acceptable in an institution that aims to prepare the future citizens of this country. The university
also needs to continue to foster diversity and student activism, since they not only promote a
learning environment, but also provide a mechanism for creating a campus climate that protects
and nurtures all students. Changing and improving society so that it provides equal opportunities
for all has usually come after long struggles and high costs. There was a point when racism was
seen as a social norm, and that unequal opportunities based on race and gender were
commonplace, however, we now know better. We understand that every person deserves the
right to equal opportunities. Racism is alive and thriving in higher education institutions, and
cannot be properly addressed until we begin to fully comprehend what racism is, the dynamics
that accompany it, and how it is being managed by the university. Such institutions can continue
to protect freedom of speech, as well as meet genuine diversity goals by maintaining integrity
and keeping true to their mission through a plethora of activities and actions (see Appendix).
Higher education institutions have played an immense role in these changes, and have the
responsibility to continue to do so.

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A2 Free Speech Combats Antisemitism: Some Restrictions


to free speech are needed to combat antisemitism on
campuses.
Tsesis, Alexander. "Campus Anti-Semitic Speech And The First Amendment." INSTITUTE
FOR THE STUDY OF GLOBAL ANTISEMITISM AND POLICY. December 09, 2016.
Web. December 08, 2016. <http://www.osservatorioantisemitismo.it/wpcontent/uploads/2014/05/02_ISGAP_Vol.-II_120114_Web.pdf#page=37>.
The mantra that more speech will reduce the risks of antisemitism is based on a libertarian faith
in the ability of communications to unmask and delegitimize hatred. The effectiveness of Nazi
antisemitism in establishing political dictatorship in Germany belies the idea that accurate
information will inevitably trump stereotype, innuendo, and dehumanization.44 It also places
harassment and intimidation on a par with dialogue. To the contrary, the former are means of
disengagement from a hated outgroup, while the latter is a form of mutual engagement between
the interlocutors. I believe that if a litigant were to challenge the constitutionality of a university
code against anti-Semitic communications, a judge could uphold it on the basis of the majoritys
consensus in Black. Like cross burning, anti-Semitic symbols that are tied to terror organizations
or despotic regimes are semantically menacing; they rely on imagery, phrases, or slurs that have
a social content beyond their immediate use and are meant to threaten targeted groups of
individuals. Whether those messages are communicated by symbols or oral communication is
less important than the issue of whether they constitute true threats. Before promulgating such a
code of conduct, university administrators should assess the historic significance of certain forms
of stereotyping, symbolism, and threats to determine whether they rise to the level of
intimidation analogous to cross burning Jewish students should be provided the opportunity to
offer feedback about the code. Their sense of safety is important for evaluating the gravity of the
circumstances. How an objective listener would perceive the message is critical for determining
whether a communication constitutes a true threat.46 For liability to attach, the speaker need not
intend to commit the violence but only to intimidate the listener.47 Accordingly, prohibitions
against antisemitism on campus need to address the extent to which ordinary Jewish students
think intimidating statements create a hostile academic environment.

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A2 Taking away free speech reduces their effectiveness:


Criminalizing descent only increases their legitimacy.
Karen, Clark. "Implementation Of Public Land Policy As A Stimulant To Collective Rejection
Of Governance." Environmental Justice. April 26, 2016. Web. December 08, 2016.
<http://online.liebertpub.com/doi/abs/10.1089/env.2015.0033>.
Neo-liberal trade policies removed labor and environmental protections in signatory countries in
order to accelerate exports while maximizing efficiencies. Soon after several large trade
agreements were made the impacts of these agreements dislodged historically stable forms of
domestic commerce and social structures. Protests ensued. Those embattled against the
agreements were marginalized and labeled as anti-globalization, then disregarded. As
globalization expanded to include stronger protections for corporations and weakened domestic
regulations more social disruption was created. Consequently, large-scale non-governmental
organizations such as the Sierra Club have aligned with newly formed protest groups where
tribal and agrarian interests, who historically competed for resources, now coalesce against a
shared antagonist. New coalitions have been so effective at garnering public support that they
have become the targets of governments. Criminalization of dissent does not effectively reduce
the legitimacy of these groups; rather, it reflects the power of these groups to faciliate effectual
social movements.

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A2 Free speech is valuable: Due to a lack of epistemic


authority limiting free speech is justified to curtail speech
that is not welfare enhancing.
Leiter, Brian. "The Case Against Free Speech." University of Chicago Law School. June 01,
2014. Web. December 08, 2016.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1931&context=public
_law_and_legal_theory>.
The second question raises even harder questions. What must a society be like such that free
speech is actually welfare-enhancing? Mills strictures of education and maturity are hardly
much help, especially given his own complacency that those strictures had relatively little
bearing even on his own benighted readers in the 1860s! The preceding discussion in this paper
has hinted at some of the relevant factors, for example: 92 (1) the epistemic quality of the major
media, since they bear primary responsibility for beliefs that are widely accepted in the society at
large; (2) the effect that common cognitive biases have on decision-making; (3) the effect that
state sector or private propaganda (consumerism in the latter case) have on human conceptions
of their basic and non-basic ineterests; (4) the extent to which citizens are able to evaluate the
epistemic authority of different sources of information and analysis, since almost everything we
believe, about climate change or traffic conditions on our commute to work, depends on relations
of epistemic authority. 93 One of the main problems in the U.S. right now is a complete
breakdown in the ability to assess epistemic authority: so, for example, that the National
Academy of Sciences endorses a view is not thought to be relevant by some substantial portion
of the population. How do we address these factors, such that they are all finely tuned to making
speech welfare enhancing? The poor epistemic quality of the media seems partly a function of
private ownership (e.g., the Murdoch empire) and partly a function of market incentives (e.g.,
pander to the lowest common denominator). Although some public media (e.g., the Public
Broadcasting Corporation in the U.S., the BBC in England) have rather good track records,
others, shall we say, do not (e.g., Pravda circa 1975). Private sector propaganda seems endemic
to capitalism, unless we were to enact dramatic restrictions on commerical speech, both for
epistemic and ethical reasons (perhaps we should?). The inability of millions of people to asess
epistemic authority sensibly seems mostly an artifact of private sector propaganda. Could these
problems be rectified within the framework of the capitalist democracies? I do not know. But let
me conclude by suggesting that these are the issues that we heirs of the Enlightenment should be
examining, and that it is long past time to abandon the implausible idea that free speech
simpliciter is an obvious force for further enlightenment and human well-being.

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A2 Limiting Free speech harms democracy: Restricting free


speech is beneficial for improving democracy.
Leiter, Brian. "The Case Against Free Speech." University of Chicago Law School. June 01,
2014. Web. December 08, 2016.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1931&context=public
_law_and_legal_theory>.
If the real problem with false and pernicious speech is, in democratic societies, that it leads some
benighted individuals to vote for those who will carry forth harmful agendas--think of the strange
Tea Party phenomenon in the United Statesthen isnt this really an argument against
democracy? Democratic procedures, however, also have dignitary values that are not touched by
the case against free speech so far; indeed, the thrust of the arguments here are largely concerned
with making democratic procedures more conducive to well-being, not supplanting them.
Democratic procedures, at least when functioning, register (however imperfectly) what people
want or desire, and doing so has both a kind of dignitary value as well as eudaemonic value for
persons.88 The case against free speech so far would only be a case against democracy if we
believed with Plato that there was such a thing as expertise about each individuals good, and
that there were some political process apart from democracy well-suited to realizing that good. (I
am assuming, already with a nod to liberal democracy, that realizing the individuals good is the
relevant desideratum. That assumption is generally not contested in bourgeois political theory,
and I adhere to local academic convention here.89) I am skeptical about both claims. I assume
though I do not argue for herethat what is good for a person depends, at some level, on the
persons wants and desires, even if heavily laundered by information. So one reason to regulate
speech in a democratic society is to effect the laundering of wants and desires necessary for
yielding meaningful information for the individual about his or her good. But I also assume
though I do not argue for herethat not everything that is bad for a person requires laundering
individual wants and desires: we can be confident already that we know a lot about what is bad
for a person. One might say I assume a kind of Platonism about the bad is true, even though
Platonism about the good is false. And if that were right, then that would put constraints on free
speech, even allowing for the independent value of democracy with respect to the good. Let me
explain.

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Students not administration should systematically reject


capitalist tools of furthering oppressive speech.
William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
Under the banner that nearly everything must be permissible, all manner of destructive behaviors
find adequate space to flourish. For Marcuse, capitalism is predicated on the repression of Eros,
and the largely free reign of the death instinct.8 That which is tolerated, more often than not, is
violent and bellicose. At the point where it becomes its own end, rather than an instrument for
the achievement of a rational, humane and pacific civilization, tolerancelike any other tool
accommodates decidedly deleterious forms. For Marcuse, tolerance taken to its extreme,
tolerance as its own objective, becomes dialectically inverted. It becomes repressive. Rather than
an instrument for freedom, it lapses under the weight of bellicosity in advanced industrial
society, emerging as an absurdity that results in a totalitarian scene. As Marcuse maintained,
Tolerance is extended to policies and conditions, and modes of behavior which should not be
tolerated because they are impeding, if not destroying, the chances of creating an existence
without fear and misery.9 Marcuses essay represents a criticism of tolerance as an end unto
itself, especially under the violent and exploitative conditions of capitalism. Since their views are
frequently predicated on aggression, sexual repression and discrimination, conservative and
reactionary elements have distorted his critique as a categorical attack on free speech.
Accordingly, Bauer portrays Marcuse as making a case for repressionof thought, conscience,
speech, and science.10 However, in his essay, Marcuse wrote that a liberating tolerance:
[W]ould include the withdrawal of toleration of speech and assembly from groups and
movements which promote aggressive policies, armament, chauvinism, discrimination on the
grounds of race and religion, or which oppose the extension of public services, social security,
medical care, etc. Moreover, the restoration of freedom of thought may necessitate new and rigid
restrictions on teachings and practices in the educational institutions which, by their very
methods and concepts, serve to enclose the mind within the established universe of discourse and
behavior thereby precluding a priori a rational evaluation of the alternatives. And to the
degree to which freedom of thought involves the struggle against inhumanity, restoration of such
freedom would also imply intolerance toward scientific research in the interest of deadly
deterrents, of abnormal human endurance under inhuman conditions, etc Thus, his repression
of thought, conscience [and] speech, as Bauer describes it, pertains to those thoughts and words
that promote destruction, bigotry, racism and deprivation. Any science repressed is that which is
geared toward developing technologies of war, environmental catastrophe and human
exploitation. Most absurd, however, is the suggestion that Marcuse favored institutional power to
enact a program of censorship against right-wing and establishment views.12 As example of this
distorted view, Phillips writes, The modern university with its vigilant policing of ideas and its

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William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
politically driven censorship policies, was given its intellectual legitimization by Marcuse.13
This is particularly remarkable, given Marcuses explicit insistence that at present, no power, no
authority, no government exists which would translate liberating tolerance into practice.14
Indeed, the withdrawal of toleration for bellicose, bigoted and destructive speech that Marcuse
advises has nothing to do with official, governmental or institutional censorship. He never makes
any demand for the exercise of state power, and in all of his works remains deeply suspicious of
what he labeled the Establishment, the complex of government, corporate, military and
institutional powers that preside over late capitalism. Rather, the withdrawal of toleration for
violence belongs to an organic, democratic movement of conscientious individuals, a rejection of
prevailing values called the Great Refusal. Citizens of conscience, not the state, which in the
Marxist view only serves to manage the interest of the ruling class, will refuse to listen, will
actively protest, the speeches of warmongers.15 The tactics employed by oppressed and
overpowered minorities will constitute extralegal means.16 Students, not administrators, will
refuse to passively accept Establishment views, views that promote war after war, and a
perpetual condition of exploitation.

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Black Lives Matter movements can employ free speech on


college campuses to oust oppressive forms of speech.
William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
Most recently, we have seen the demand for greater tolerance applied to students protesting on
the national stage, specifically in the arena of electoral politics. On March 11, 2016, Donald
Trump canceled a planned campaign rally on the campus of the University of Illinois, Chicago in
the face of massive organized protests. As the events unfolded, the results were predictable. Both
the media and the presidential campaigns labeled the protesters as professional agitators
restricting the legitimate free speech of a political candidate.32 This was followed the next day
by editorials across the political spectrum, some expressing varying degrees of support for the
spirit of the protest, but nonetheless making precisely the vacuous and legally unsustainable
claim that a peaceful protest in opposition to another organized assembly of people was
tantamount to restricting the first amendment rights of others.33 Trump himself claimed that his
right to free speech had been violated by the students.34 Even Trumps political opponents have
called the protests infringements of free speech. Perhaps most revealing is that the mainstream
media coverage failed to include (inclusion being a symbol of tolerance) commentators
discussing how protesters had their speech infringed by being assaulted, kicked out and even
arrested during these rallies. BLM and the student protesters are demanding an end to legalized
oppression, and at the very least, legalized intoleranceintolerance as policy. As Marcuse
himself points out, tolerance can only be a virtue when it is contextualized within a social
structure where there are free-thinking self-reflective agents, and where the laws and policies
themselves do not violate the spirit of tolerancethat is, when intolerance is not the more
common result and is not a result that becomes further institutionalized. This is precisely what
BLM and the associated student protest movements are addressing. Without explicitly using the
label, they are resisting repressive tolerance and have begun to associate that repressive tolerance
within a broader racist, sexist, heteronormative capitalist structure. It is this last element,
however, the relationship between (hetero)sexism, racism, state violence and the broader
capitalist system that both BLM and the student protest organizations have failed to account for
the most. This is precisely where we can observe the enduring relevance of Herbert Marcuses
thought, not only as a diagnostic tool for counterrevolutionary tendencies that are mostly only
superficially different from the kinds of oppression and resistance that he was writing about in
the 1960s and 1970s, but also as a critique of the Leftist responses to counterrevolution. Before
explaining how Marcuse can serve as a guide for more successful, organized radical Left
circumvention of counterrevolution, we describe the connection between repressive tolerance
and counterrevolution that Marcuse initially theorized.

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Universities silencing leftist movements employs repressive


tolerance that undermines dissent.
William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
The demand for university students on the Left to become more tolerant is not a call for the
inclusion of additional points of view. It is, instead, a call to silence, a call for exclusion of the
students systemic critique, and effort to disrupt localized refusals before they can coalesce into a
Great Refusal. Tolerance of other views is paid for by silencing student voices. It is a rather
dialectical conversion of tolerance to its otherintolerance in the guise of greater inclusivity.
Precisely, then, because it perverts the idea of liberty into another form of domination, repressive
tolerance has become another instrument of counterrevolution. Marcuse expressed consternation
over threats to the cohesiveness of the New Left, observing that it had been weakened to a
dangerous degree by tactics that had amplified internal fragmentation and enhanced ideological
conflicts within the militant opposition and the lack of organization.59 The silence following
from repressive tolerance disrupts the intellectual coalescence of the Great Refusal, stifles reason
and neutralizes dissent before it can even begin. As Marcuse admonished, Thus, within a
repressive society, even progressive movements threaten to turn into their opposite to the degree
to which they accept the rules of the game.60 Sit quietly, listen and be tolerant: that is the
refrain of the Establishment. Repressive tolerance is not a force for merely stupefying the
population. With renewed discontent on college campuses, it has become a means to undermine
the dissent of the educated, a means to prevent an organized, unified questioning of the
Establishment and its system, a tactic of the counterrevolution

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January/February 2017

Free speech is key to establish liberating tolerance which is


key to having all voices heard.
William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
Repressive tolerance is deployed to silence dissenters and prevent those who, by class position,
have material interests aligning with emancipatory movements from joining them. In essence,
repressive tolerance becomes a counterrevolutionary tool, turning potential allies into ardent
enemies. The attempt to silence protestors is an attempt to disrupt solidarity. Thus, we can
observe that the relevance of Marcuse in the twenty-first century is located not just in the
usefulness of his concepts and the persistence of the same processes and patterns of injustice he
observed. He also offered a tactical solution: liberating tolerance. For Marcuse, liberating
tolerance is the only promising alternative (and indeed the only peaceful one with a hope of
success) to the natural right to violent resistance to oppression.61 Liberating tolerance is a tool
not a goal: liberating tolerance is not a tolerance to base a new, just society on; it is a tolerance to
allow the possibility of establishing a new, just society. It is a partisan tolerance for a certain
historical conjuncture when liberal tolerance (1) lacks the foundational sources of its legitimacy
in the informed, free thinking, self-reflective autonomous character of the citizenry, and (2)
allows regression and intolerance to consistently prevail. In other words, when the citizenry
generally lacks the capacity to recognize the fascist nature of intolerance, and intolerance
becomes more persuasive than tolerance, justice and freedom on such a massive scale that
tolerance, justice and freedom are institutionally threatened, liberal tolerance no longer serves as
protection against intolerance.62 Liberating tolerance resists the perversion of tolerance by the
forces of intolerance. It is a thoughtful yet visceral rejection of intolerance, regression and
injustice. As Marcuse himself made clear, liberating tolerance is a refusal to tolerate the
intolerable and a refusal to castigate those who are speaking out against institutionally and
historically supported forms of oppression and suppression, not the illegalization of certain kinds
of speech or constitutionally protected organizing; it is a new way of thinking about tolerance
that actually resuscitates the original goal of (liberal) tolerancethe ability of all people to have
their voices heard, especially those that are speaking out against oppression and intolerance

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January/February 2017

Liberating Tolerance is key for movements to emancipate


democratic impetus.
William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
Importantly, we must not limit ourselves to merely critiquing existing oppressions, or just
suggest principled radical reforms that could move us towards an emancipated, just (global)
society. As many on the Left have attempted, though sadly without much wider recognition, we
need to start building these alternative futures in the counterrevolutionary present wherever and
whenever possible. This means first building racially, sexually and gender inclusive
communicative and organizational bridges between both nascent and longer established social
movements and class-based organizations, including the too often forgotten Left political
parties.69 Liberating tolerance could tear open avenues for the development of the new
sensibility Marcuse heralds in his late work. We see this as crucial for the possibility of a new
society, a free, just, and rational society antipodal and antithetical to the unfree, unjust, and
irrational confines of neoliberal capitalism. College campuses have, since Marcuses time been a
potentially key environment for the cultivation of this new sensibilitya sensibility, a
mentality, oriented towards care, compassion, love, justice, cooperation and indeed active disgust
at their inverses.70 BLM and BDS and other less well-known organized movements offer us a
new hope and opportunity to revitalize a youthful emancipatory disposition with sustainability.
Liberating tolerance against repressive tolerance has the potential to open up the material and
ideological space for precisely these developments, against every wish of the
counterrevolutionary forces that militate against progress through the silencing of the exuberant
dissent we are witnessing across college campuses in the United States and around the world. We
write in support of these students and their rejection of white supremacy, racial injustice (on
campus and beyond), police brutality as standard practice, especially against minorities, and their
calls for an egalitarian educational experience, including the extension of that experience for all
people in the United States and around the world. Beyond Herbert Marcuses words, we have his
emancipatory democratic impetuswe hope to have embodied that impetus here and shown it to
be more relevant than ever.





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AFF: Free Speech Autonomy AC



January/February 2017

Free Speech Autonomy AC


The Autonomy AC is a good chance to brush up on your basic philosophy and

framework debating skills. The AC follows the general structure that free speech is
necessary/beneficial to autonomy, autonomy is good, thus free speech ought not be limited on
college campuses. The framework level is where you will have the chance to prove that
autonomy is the paramount standard and should come before anything else. When proving that
free speech and autonomy are heavily linked there are many pools of literature that can be pulled
from: legal cases, philosophy, etc.
When reading this case, it is easy to circumvent a lot of topic literature because there is
plenty of generic literature on the relation of free speech to autonomy. It would be wise to utilize
cards (many of which are in this file) that link the university as a place where free speech is
crucial. This case can also draw from many of the cards included in other sections like the
Legalism AC because many Supreme Court cases show the importance of free speech in relation
to self-determination.
Another alternative impact is to frame how important autonomy is in the context of
expression is for college students. There is plenty of literature (and cards included) that speaks to
the importance of college students to have the ability to speak openly and freely. Arguments like
polls or studies showing the importance of free speech can also be utilized in this AC to help
affirm the position that people want their free speech rights to be unhindered. These arguments
will be harder to link back to the standards/criterion because they do not speak to the impact of
free speech on autonomy, however autonomy and desires are linked, and thus poll arguments
would still apply.

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128

AFF: Free Speech Autonomy AC

January/February 2017

A significant portion of millennials are in favor of certain


free speech restrictions.
Poushter, Jacob. "40% Of Millennials OK With Limiting Speech Offensive To Minorities." Pew
Research Center. November 20, 2015. Web. December 05, 2016.
<http://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-with-limitingspeech-offensive-to-minorities/>.
Compared with people we surveyed in dozens of nations, Americans as a whole are less likely to
favor the government being able to prevent speech of any kind. The debate over what kind of
speech should be tolerated in public has become a major story around the globe in recent weeks
from racial issues on many U.S. college campuses to questions about speech laws in Europe in
the wake of concerns about refugees from the Middle East and the terrorist attacks in Paris.
Overall, our global survey found that a majority of Americans say that people should be able to
say offensive things about minority groups publicly. Two-thirds of Americans say this, compared
with a median of 35% among the 38 nations we polled. In the U.S., our findings also show a
racial divide on this question, with non-whites more likely (38%) to support government
prevention of such speech than non-Hispanic whites (23%). Nearly twice as many Democrats say
the government should be able to stop speech against minorities (35%) compared with
Republicans (18%). Independents, as is often the case, find themselves in the middle. One-third
of all women say the government should be able to curtail speech that is offensive to minorities
vs. 23% of men who say the same. Furthermore, Americans who have a high school degree or
less are more likely than those with at least a college degree to say that speech offensive to
minority groups should be able to be restricted (a 9-percentage-point difference).

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129

AFF: Free Speech Autonomy AC

January/February 2017

The ability to express is intricately connected to the concept


of autonomy, restrictions of freedom threaten freedom.
Brison, Susan. "The Autonomy Defense Of Free Speech." Ethics Vol. 108, No. 2, pp. 312-339.
January 01, 1998. Web. December 05, 2016.
<http://www.jstor.org/stable/10.1086/233807?seq=1#page_scan_tab_contents>.
Joshua Cohen has recently presented an objection to the autonomy defense (which he dubs the
maximalist view of free speech on account of the high, indeed trumping, value it places on
the right to free speech). Cohen points out that the view that expression always trumps other
values because of its connection with autonomy suggests that a commitment to freedom of
expression turns on embracing the supreme value of autonomy which threatens to turn
freedom of expression into a sectarian political position.49 Cohen asks, Is a strong
commitment to expressive liberties really available only to those who endorse the idea that
autonomy is the fundamental human goodan idea about which there is much reasonable
controversy? In reply, Cohen states, I am not doubting that such a strong
commitment is available to those whose ethical views are of this kind, but I reject the claim that
such views are really necessary.50 I want to make it clear that I am doubting, and am in fact
rejecting, precisely this: that the acceptance of any theory of autonomy yields a defense of free
speech that precludes restrictions on hate speech. This makes my critique of the autonomy
approach more decisive and in one important way less controversial than Cohens, since the
liberal theorists who advocate the autonomy defense of free speech argue, contrary to Cohen,
that they do not endorse the idea that autonomy is the fundamental human good (my
emphases). Rather, they claim that respect for autonomy is required by the correct view of
right.51
*Ellipsis from source

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January/February 2017

The importance of free speech presupposes the protection of


free speech even in the face of harmful speech.
Brison, Susan. "The Autonomy Defense Of Free Speech." Ethics Vol. 108, No. 2, pp. 312-339.
January 01, 1998. Web. December 05, 2016.
<http://www.jstor.org/stable/10.1086/233807?seq=1#page_scan_tab_contents>.
A free speech principle does not imply that speech can never be restricted. Rather, it generates a
presumption against restricting speech, even harmful speech. A showing of harm will not, by
itself, be sufficient to justify restriction. As Scanlon notes, On any strong version of the
doctrine [of freedom of expression] there will be cases where protected acts are held to be
immune from restriction despite the fact that they have as consequences harms which would
normally be sufficient to justify the imposition of legal sanctions.37 On Scanlons view, any
theory of free speech which counts as a significant oneincluding his own has this
consequence, namely, that it considers immune from restriction not only offensive or morally
repugnant speech, but also genuinely harmful speech, even where the resulting harms are so
serious that the government would normally be justified in restricting individual liberties in order
to prevent them. But why should speech be considered so special as to be worthy of protection,
even when it is con- ceded to cause real harmsharms which, if brought about by any other
means, would be considered unjust and legitimately preventable by governmental intervention?

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131

AFF: Free Speech Autonomy AC

January/February 2017

Empirical examples (Valdosta State and University of


Delaware) show how schools crush conversation and thus
free exchange of ideas before they even occur.
Trama, Zachary. "Keeping The Marketplace Of Ideas Open In Schools." Foundation for
Individual Rights in Education. December 16, 2011. Web. December 05, 2016.
<https://www.thefire.org/keeping-the-marketplace-of-ideas-open-in-schools/>.
When faced with this test, Valdosta State University failed. Hayden Barnes only wanted the
school to make decisions that were friendlier to the environment. When he shared this idea, he
was hit with the difficult realization that it could only be shared on one small section of the
campus labeled as the schools free-speech zone. When the idea caused tension between
Barnes and the universitys president, Barnes was removed from the university. Protest speech at
Valdosta was relegated to a free speech zone for a clear reason. It is in the nature of protests that
their message may be one of controversy, one that not everybody wants to hear. Wishing to
cleanse the campus of unpopular messages, Valdosta State put free speech in a vice, turning it as
tightly as they could without eliminating it altogether. As proved in the case of Hayden Barnes,
even the expression that takes place within the free speech zone may be subject to more contentbased restriction. The Hayden Barnes incident showed just how far the schools president,
Ronald Zaccari, was willing to go to silence a lone dissenter. The University of Delaware failed
its incoming classes as well. These new students werent even given a chance to form ideas
before they were bombarded with a concisely stated and often repeated set of beliefs that they
were all expected to share. The idea for this indoctrination came straight from the schools top
Residence Life directors, with an obvious goal in mind: Make every students views the same.
Proactively eliminating diverse ideas about controversial subjects is an abhorrent practice. The
University of Delaware Residence Life program sought to systematically weed out touchy
conversations before they were even had. Those who may have had different views than the ones
being dictated soon realized that they were in the minority. By the end of orientation, the point
was hammered home, and their ideas were flushed down the spiral of silence. While the policies
of Delaware and Valdosta State were different, the effect was the same. New or unpopular ideas
were crushed. Whether they were pushed out of sight or overpowered by indoctrination, they
were removed from the marketplace. Students felt less free to explore their educational
boundaries, and scholarship stayed inside the box. Exploratory thinking was discouraged.

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132

AFF: Free Speech Autonomy AC

January/February 2017

A2 Autonomy AC: Majority of students want restrictions to


exist on their campus in regards to slurs, costumes, and
other forms of free speech.
Simon, Cecilia. "Fighting For Free Speech On America's Campuses." New York Times. August
01, 2016. Web. December 05, 2016.
<http://www.nytimes.com/2016/08/07/education/edlife/fire-first-amendment-on-campusfree-speech.html?_r=0>.
Asked if colleges should have policies against slurs and other intentionally offensive language,
69 percent of students said yes, while 27 percent believed they should be able to restrict
expression of potentially offensive political views. And 63 percent wanted schools to restrict
costumes that stereotype racial or ethnic groups. While 76 percent agreed that students should
not be able to prevent the news media from covering campus protests, nearly half supported
reasons for curtailing that coverage: biased reporting (49 percent), the right to be left alone when
protesting (48 percent) and the right to tell their own story on the internet and social media (44
percent). For black students, percentages are higher (66 percent, 61 percent and 54 percent).
Black students were least sanguine about the right to peaceable assembly: 60 percent saw it as
threatened, compared with 29 percent of white students. Over all, 54 percent polled said the
climate on their campus prevents some people from saying things they believe because others
might find them offensive.

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133

AFF: Free Speech Autonomy AC

January/February 2017

ACLU affirms that defamation laws are ineffective. Speech


codes dont help those in oppressed positions.
ACLU. "Hate Speech On Campus." No Date. Web. December 05, 2016.
<https://www.aclu.org/other/hate-speech-campus>.
Historically, defamation laws or codes have proven ineffective at best and counter-productive at
worst. For one thing, depending on how they're interpreted and enforced, they can actually work
against the interests of the people they were ostensibly created to protect. Why? Because the
ultimate power to decide what speech is offensive and to whom rests with the authorities -- the
government or a college administration -- not with those who are the alleged victims of hate
speech. In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw
racist defamation. But throughout its existence, the Act has largely been used to persecute
activists of color, trade unionists and anti-nuclear protesters, while the racists -- often white
members of Parliament -- have gone unpunished. Similarly, under a speech code in effect at the
University of Michigan for 18 months, white students in 20 cases charged black students with
offensive speech. One of the cases resulted in the punishment of a black student for using the
term "white trash" in conversation with a white student. The code was struck down as
unconstitutional in 1989 and, to date, the ACLU has brought successful legal challenges against
speech codes at the Universities of Connecticut, Michigan and Wisconsin. These examples
demonstrate that speech codes don't really serve the interests of persecuted groups. The First
Amendment does. As one African American educator observed: "I have always felt as a minority
person that we have to protect the rights of all because if we infringe on the rights of any
persons, we'll be next."

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134

AFF: Free Speech Autonomy AC

January/February 2017

A law which denies an individual the expression of their


views is not consistent with the doctrine of autonomy.
Autonomy is meant to protect to people generally.
Baker, Edwin. "Hate Speech." Penn Law: Legal Scholarship Repository. March 06, 2008. Web.
December 05, 2016. <http://scholarship.law.upenn.edu/faculty_scholarship/198/>.
The conception of autonomy that the state must respect is, as noted, in a
sense formal not substantive. 13 A legal order must ascribe autonomy to people generally,
usually withdrawing this attribution only for the extent of involvement in institutional structures
frameworks steered by mechanisms other than communication and a persons choices. The state
cannot coherently ask a person to obey its laws unless it treats the person of capable of making
choices for herself, for example, the choice to obey the law.14 As so conceived, respect for a
persons autonomy is in general an on/off value. A government regulation either is or is not
consistent with the required respect. A person is not treated as formally autonomous if the law
denies her the right to use her own expression to embody her views. As used here, formal
autonomy has an activity or choice, not a result or resource-oriented focus. (I have gone further
and argued that she also must have a general right over the value-expressive uses of herself her
own body but that raises interpretive difficulties not necessary to examine here.) Moreover,
meeting the requirement of respecting her choice autonomy, granting this expressive right,
creates no actual or even potential conflict with respect for others formal autonomy, that is, no
conflict with recognizing their equivalent choice or expressive rights with respect to their body
or speech. Laws respect for formal autonomy of one person never denies respect for the formal
autonomy (or, for that matter, the formal equality) of another.

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January/February 2017

Democratic legitimacy is dependent of the advancement of


autonomy regardless of the content of the speech because
autonomy is dependent on the advancement of the view.
Baker, Edwin. "Hate Speech." Penn Law: Legal Scholarship Repository. March 06, 2008. Web.
December 05, 2016. <http://scholarship.law.upenn.edu/faculty_scholarship/198/>.
Democratic legitimacy, I believe, and certainly the civil libertarian commitment, requires that, in
advancing peoples substantive autonomy as well as in advancing substantive egalitarian aims
and other proper policy goals, the legal order neither have the purpose to nor use general means
that disrespect peoples formal autonomy (or their formal equality). On this view, respect for free
speech is a proper constraint on the choice of collective or legal means to advance legitimate
policy goals. Typically racist hate speech embodies the speakers at least momentary view of the
world and, to that extent, expresses her values. Of course, her speech does not respect others
equality or dignity. It is not, however, her but the states legitimacy that is at stake in evaluating
the content of the legal order. Laws purposeful restrictions on her racist or hate speech violate
her formal autonomy, while her hate speech does not interfere with or contradict anyone elses
formal autonomy even if her speech does cause injuries that sometimes include undermining
others substantive autonomy. For this reason, prohibitions on racist or hate speech should
generally be impermissible even if arguably permissible in special, usually institutionally
bound, limited contexts where the speaker has no claimed right to act autonomously such as
when, as an employee, she has given up her autonomy in order to meet role demands that are
inconsistent with expressions of racism.

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January/February 2017

The Supreme Court affirms the necessity of free speech to a


functioning democracy.
Warren, Earl. "SWEEZY V. NEW HAMPSHIRE.". June 17, 1957. Web. December 05, 2016.
<http://caselaw.findlaw.com/us-supreme-court/354/234.html>.
The essentiality of freedom in the community of American universities is almost self-evident. No
one should underestimate the vital role in a democracy that is played by those who guide and
train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and
universities would imperil the future of our Nation. No field of education is so thoroughly
comprehended by man that new discoveries cannot yet be made. Particularly is that true in the
social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot
flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain
free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our
civilization will stagnate and die. Equally manifest as a fundamental principle of a democratic
society is political freedom of the individual. Our form of government is built on the premise that
every citizen shall have the right to engage in political expression and association. This right was
enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in
America has traditionally been through the media of political associations. Any interference with
the freedom of a party is simultaneously an interference with the freedom of its adherents. All
political [354 U.S. 234, 251] ideas cannot and should not be channeled into the programs of our
two major parties. History has amply proved the virtue of political activity by minority, dissident
groups, who innumerable times have been in the vanguard of democratic thought and whose
programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is
not to be condemned. The absence of such voices would be a symptom of grave illness in our
society.

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January/February 2017

The market place of Ideas promoted by free speech is key to


self governance.
Brown, Rebecca. "THE HARM PRINCIPLE AND FREE SPEECH." 89 Southern California
Law Review 953 (2016) USC Law Legal Studies Paper No. 15-11. September 27, 2016.
Web. December 05, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584080>.
The marketplace of ideas and several other important justifications of free speech rest on the
proposition that protecting speech has salutary consequences for society. It contributes to selfgovernment, promotes transparency of those in power, and produces overall better social results,
including tolerance.257 A rule of content regulation that forbids the restriction of speech based
on censorial theories of social harm is consistent with these instrumental justifications for the
First Amendment, as it leaves intact the heavy presumption against suppression of messages or
ideas. At the same time, however, it also respects the core intuition behind these instrumental
theories of social utility by permitting the government to regulate when harm is the result of
expression that is not espousing an idea or a message.

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January/February 2017

Free speech is necessary for the moral agency of people. It


allows people the ability to express their thoughts which is a
hallmark of agency.
Brown, Rebecca. "THE HARM PRINCIPLE AND FREE SPEECH." 89 Southern California
Law Review 953 (2016) USC Law Legal Studies Paper No. 15-11. September 27, 2016.
Web. December 05, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584080>.
Other justifications for protecting speech are more constitutive, as Ronald Dworkin called
them.258 These theories value freedom of speech because it protects the dignity and moral
agency of the people. The constitutive value is implicated both for potential speakers and for
potential audiences. Dworkin explained that government denies the moral responsibility of its
people when it withholds from them the opportunity to hear opinions that might persuade them
to dangerous or offensive convictions.259 Being subject to influence from a wide range of
ideas, good and bad, is critically important. T.M. Scanlon clarified that these interests of the
audience are not served, however, when expression influences us in ways that are unrelated to
relevant reasons, or in ways that bypass our ability to consider these reasons.260 This is the
kind of operation upon us that expression can have, and the suppression of which I am calling
non-censorial. Scanlon offered subliminal advertising as an example. What is objectionable
about subliminal advertising, if it works, is that it causes us to actto buy popcorn, say, or to
read Dostoevskyby making us think we have a good reason for so acting, even though we
probably have no such reason.261 He went on to affirm an important truth relevant to the
assessment of governmental restrictions on speech. The central audience interest in expression,
he wrote, is the interest in having a good environment for the formation of ones beliefs and
desires.262 Government can contribute to that environment by protecting against some kinds of
speech harms. Indeed, the autonomy interests of an audience could be enhanced by regulation of
speech that causes a harmful impact that may not be obvious on the surface. Scanlons view
speaks favorably to the idea of a non-censorial First Amendment theory.

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January/February 2017

Speech regulations have the potential to chill speech beyond


their intentions.
Strossen, Nadine. "Regulating RACIST SPEECH ON CAMPUS: A MODEST PROPOSAL?."
Duke Law Journal 484-573. 1990. Web. December 05, 2016.
<http://scholarship.law.duke.edu/dlj/vol39/iss3/3/>.
Second, there is an inescapable risk that any hate speech regulation, no matter how narrowly
drawn, will chill speech beyond its literal scope. Members of the university community may well
err on the side of caution to avoid being charged with a violation. For example, there is
evidence that the rule which the University of Wisconsin implemented in 1989 has had
this effect, even though it has not yet been directly enforced. 8 3 A third problem inherent in any
campus hate speech policy, as Professor Lawrence concedes,18 4 is that such rules constitute
a precedent that can be used to restrict other types of speech. As the Supreme Court has
recognized, the long-range precedential impact of any challenged governmental action should be
a factor in evaluating its lawfulness.185

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January/February 2017

Racial Justice coincides with free speech, free speech is


about making thos in power uncomfortable.
Parker, Dennis. "Racial Justice And Free Speech Are Not Mutually Exclusive." ACLU.
November 13, 2015. Web. December 05, 2016. <https://www.aclu.org/blog/speakfreely/racial-justice-and-free-speech-are-not-mutually-exclusive>.
Ironically, the phrase political correctness, ostensibly invoked to promote free expression, is
often actually the protest of being called to task for the first time for the consequences of
previously unchallenged statements and conduct. Its purpose and effect is to belittle and demean
the call for other people to recognize the humanity and feelings of others. Putting aside the too
often forgotten fact that the First Amendment protects against state suppression of speech and
assembly and not interactions between private citizens, the fact that you have the right to say
something doesnt mean you should. Sometimes healthy doses of humility and empathy are
called for, values academic institutions should also foster. For instance, one of the things that
brought the situation to a boil at Yale was a reaction to a college e-mail urging that students to
think before dressing up in possibly racist or offensive costumes. That call for consideration and
civility was challenged as an unfair trammeling of the rights of students, as if the most
fundamental request for decency was somehow a constitutional violation. Yale, lets remember,
is a private institution. It would be tragic if the current discussion of the demonstrations failed to
include a discussion of the underlying issues of discrimination and exclusion which remain
rampant in our country. I applaud those who speak in favor of speech that makes people
uncomfortable, but I would remind them to remember that what is good for the goose applies
equally to the gander. Lets be willing to make the people who are most privileged and powerful
uncomfortable. Lets remember a fact wholly missing from the dialogue, which is that the law
requires that students cannot be denied the opportunity to an education because of a hostile
environment and consider that when we are discussing campus communities. Lets try to find a
way to educate that includes everyone, and not just those who have been the historic
beneficiaries of educational opportunities historically denied others.

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141

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January/February 2017

The ability to express perspective (ie attitudes, traits, etc) is


crucial to autonomy.
Williams, Susan. "Free Speech And Autonomy: Inkers, Storytellers, And A Systemic Approach
To Speech." Digital Repository @ Maurer Law. 2011. Web. December 06, 2016.
<http://www.repository.law.indiana.edu/facpub/1321/?utm_source=www.repository.law.i
ndiana.edu%2Ffacpub%2F1321&utm_medium=PDF&utm_campaign=PDFCoverPages>
The perspective of the autonomous agent is also crucial to our understanding of character and the
possibility of integrity. Character is a collection of personality traits, attitudes, and values held by
an individual that is relatively stable over time. Character ties a life together, allowing us to see
ourselves and others as more than simply arbitrary collections of behaviors and experiences.
Owen Flanagan describes soldiers suffering from an identity crisis who were observed by Erik
Erikson as follows: [T]hey normally experience themselves as the locus of a set of subjectively
linked events, as a sort of conduit What they lack., is any sense of coherent and authoritative
"me-ness," of personal sameness-any sense that these subjectively linked events occurring to
and in them constitute a person, a self, a life.1 For these soldiers, there is not a complete
breakdown of the boundaries of personal identity: they are aware when an act or emotion
happens to them rather than to someone else. The problem is that they cannot see why the simple
fact of the location of that act or emotion in them makes it theirs in any meaningful sense. They
have lost a sense of authorship or autonomy. This sense of autonomous agency is the glue that
holds together the disparate elements of a life into a single person with a coherent character.
*Ellipsis from source

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January/February 2017

Narrative autonomy is linked to storytelling and is based on


the ability to create relations.
Williams, Susan. "Free Speech And Autonomy: Inkers, Storytellers, And A Systemic Approach
To Speech." Digital Repository @ Maurer Law. 2011. Web. December 06, 2016.
<http://www.repository.law.indiana.edu/facpub/1321/?utm_source=www.repository.law.i
ndiana.edu%2Ffacpub%2F1321&utm_medium=PDF&utm_campaign=PDFCoverPages>
This process of narrative autonomy is fundamentally relational. First, the model is substantively
relational: the content or substance of the categories we use in telling our stories-the
understandings of character, the familiar plot lines, the narrative techniques-are part of our
cultural inheritance and are given to us through our social relations rather than created ex nihilo
by us individually. Second, the model is causally relational: the capacities we use in the process
of telling our stories are the product of certain social relationships and require such relations to
sustain them. So, as many writers have recognized, both rationality and imagination are
capacities that are learned, developed and sustained by social relationships." Indeed, as Seana
points out, isolating a person can lead to the loss of a whole range of such capacities, sometimes
to the point of insanity.' Finally, a narrative model of autonomy is inherently relational: narrative
(unlike choice) assumes a relational context. It is not that one cannot tell a story alone, but (1) the
normal assumption is that stories are told to someone; (2) the exceptions to this norm often
confirm it by positing an imaginary audience; and (3) even when the only audience is ourselves,
we tend to replicate the social aspect by thinking of ourselves as separated into the part telling
the story and the part hearing it. In other words, a narrative model builds a relational element into
the concept of autonomy.

Champion Briefs

143

AFF: Free Speech Autonomy AC

January/February 2017

Free Speech and Autonomy: inkers, Storytellers, and a


Systemic Approach to Speech.
Williams, Susan. "Free Speech And Autonomy: Inkers, Storytellers, And A Systemic Approach
To Speech." Digital Repository @ Maurer Law. 2011. Web. December 06, 2016.
<http://www.repository.law.indiana.edu/facpub/1321/?utm_source=www.repository.law.i
ndiana.edu%2Ffacpub%2F1321&utm_medium=PDF&utm_campaign=PDFCoverPages>
Finally, a narrative model of autonomy also provides a meaningful basis for our practices of
democratic politics. As is probably apparent, a narrative model of autonomy provides support for
a dialogic model of democracy. Because our autonomous identities are created through a process
of dialogue with others, it is a mistake to see our interests and values as endogenous to politics.
Moreover, political interaction is one of the important realms in which we engage in building
narrative autonomy." The goal of politics is not to preserve a pre-existing sphere of individual
autonomy, but to provide the types of interaction that constitute one part of our autonomy."

Champion Briefs

144

AFF: Free Speech Autonomy AC

January/February 2017

Free speech is extremely important in truth finding missions.


It serves the basis of society to circulate true ideas.
Williams, Susan. "Free Speech And Autonomy: Inkers, Storytellers, And A Systemic Approach
To Speech." Digital Repository @ Maurer Law. 2011. Web. December 06, 2016.
<http://www.repository.law.indiana.edu/facpub/1321/?utm_source=www.repository.law.i
ndiana.edu%2Ffacpub%2F1321&utm_medium=PDF&utm_campaign=PDFCoverPages>
Freedom of speech is an indispensable right to find the truth. Truth can be discovered best when
people express themselves freely. This belief was embodied first in the Supreme Courts
principle of a marketplace of ideas which Justice Oliver Wendell Holmes, Jr. expressed
in Abrams.283 In this theory, the truth should survive market competition while error and
falseness should not. Utilitarian philosopher John Stuart Mills individualism was a major
influence on Justice Holmes, particularly with respect to his idea of the laissez-faire economic
market. Mill contends that all expressions including falsehood should be freely expressed
because those expressions can be utilized to prove the truths truthfulness in the
competition.284 Mills utilitarian argument depends on the form of the adversary system. He
makes an example of litigation where cross-examinations are performed as a demonstration of a
truth competing process.285Furthermore, Chafee insists that the adversary system should be a
basic method to inspect truth in a society by this truth argument of free speech.286 As I criticized
in the previous chapter, however, the adversarial competition for the truth can lead to an
incorrect result if contenders abuse the rule by seeking after their own self-interest. In addition,
even Civil Law countries which have adopted the inquisitorial system for their fundamental fact
finding structure can determine truth well with the right of free speech. Therefore, Mills
protection of free speech can confront the similar criticism when there exist some abusers in the
competition.

Champion Briefs

145

AFF: Free Speech Autonomy AC

January/February 2017

Autonomous humans are entitled to make their own choices


whether rational or not.
Carmi, Guy. "DIGNITY VERSUS LIBERTY: THE TWO WESTERN CULTURES OF FREE
SPEECH." University of Virginia School of Law. August 22, 2008. Web. December 07,
2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1246700>.
Fully independent human beings should be entitled to make their own choices in life, based upon
their purposes and convictions, whether these are rational or not. An autonomous person should
be treated as such by his government and fellow citizens. To deny this is an insult to a persons
self-conception and worth as a human being.132 For these reasons, the proponents of the
classification of freedom of expression as a negative liberty believe that the essentiality of
freedom of expression in our lives justifies this result. The powerful words of Berlin seem
adequate for summarizing the idea of free speech as a negative right. As he noted: Pluralism,
with the measure of negative liberty that it entails, seems to me a truer and more humane ideal
than the goals of those who seek in the great disciplined, authoritarian structures the ideal of
positive self-mastery by classes, or peoples, or the whole of man- kind. It is truer, because it
does, at least, recognise the fact that human goals are many, not all of them commensurable, and
in perpetual rivalry with one another. To assume that all values can be graded on one scale, so
that it is a mere matter of inspection to deter- mine the highest, seems to me to falsify our
knowledge that men are free agents, to represent moral decision as an operation which a sliderule could, in principle, perform.133 There is a strong link between autonomy and liberty,
especially in relation to free speech. This link is also manifested in liberalisms emphasis on the
individual. Liberal individualism insists upon respecting each individuals capacity to make his
or her own choices.134 Free speech facilitates the flow of information to and from individuals
and is viewed as a prerequisite for the true existence of autonomy. Denying a person access to
certain views impairs her ability to receive full information and hinders the existence of true
autonomy.135 Similarly, denying someones opinion is viewed as paternalistic and unjust by
liberals.136 [O]nce conceived of as a negative liberty, autonomy becomes closely associated
with speakers, [and]means freedom of the speaker to say whatever he wants.137

Champion Briefs

146

AFF: Free Speech Autonomy AC

January/February 2017

Democracies must promote the inclusion of all voices to


maintain their democratic status.
Rostbll, Christian. "Freedom Of Expression, Deliberation, Autonomy And Respect." European
Journal of Political Theory. January 2011. Web. December 07, 2016.
<http://ept.sagepub.com/content/10/1/5.full.pdf+html>.
In order for democracy to provide a secure foundation for freedom of expression, it cannot be
defined merely as a form of government in which the present majority has its desires
implemented. Critics of the democracy argument argue that, as a right, freedom of expression
restrains the ability of the majority to do as it likes, and therefore a conflict exists between
freedom of expression and democracy as majority rule.3 Even if democracy requires that
decisions must ultimately be made by the majority, however, this is no reason to identify
democracy with implementing whatever desires the present majority has, for this might make it
difficult for new majorities to form in the future.4 For example, if the majority decides to
prohibit criticism of its own policies, democratic elections will no longer be possible because the
people will lack the basis for deciding who to vote for in the future. If democracy is the
fundamental ideal we wish to protect and promote, it can hardly be used to justify laws that
undermine its own future possibility. The problem with majoritarian conceptions of democracy is
that they confuse a technical decision-making procedure with an intrinsic value.5

Champion Briefs

147

AFF: Free Speech Autonomy AC

January/February 2017

Freedom of expression is grounded in the concept of


autonomy as one needs the ability to express their own
desires.
Rostbll, Christian. "Freedom Of Expression, Deliberation, Autonomy And Respect." European
Journal of Political Theory. January 2011. Web. December 07, 2016.
<http://ept.sagepub.com/content/10/1/5.full.pdf+html>.
A stronger democracy argument is one that sees popular sovereignty as the ideal to strive for and
that holds that, if the people are free to express their beliefs and values, they will actually be able
to rule themselves.6 This justification of freedom of expression is based on a conception of
autonomy, namely the political autonomy of being subject only to laws that one has been able to
participate in the making of. To understand what political autonomy means and how freedom of
expression is a prerequisite for its exercise, we must elaborate the argument that democracy
cannot be identified with majority rule. To begin with, we cannot reduce the democratic process
to an exercise of will. If we regard democracy as a form of government in which the majority
decides on the basis of its given preferences, political autonomy exercised by citizens in common
becomes impossible, and democracy and freedom of expression can indeed come into conflict. It
makes no sense to speak about collective autonomy when legitimate law is seen as nothing but
the expression of the will of the majority, because the minority will lack any opportunity to
influence law and thus will be heteronymous under those conditions.

Champion Briefs

148

AFF: Free Speech Autonomy AC

January/February 2017

To achieve a cohesion of democracy and freedom of


expression there must be processes to encourage the
formulation of opinions.
Rostbll, Christian. "Freedom Of Expression, Deliberation, Autonomy And Respect." European
Journal of Political Theory. January 2011. Web. December 07, 2016.
<http://ept.sagepub.com/content/10/1/5.full.pdf+html>.
This is an argument for freedom of expression that relies on a model of democracy that is not
concerned simply to implement existing desires,8 but rather to ensure the fullness and richness
of public debate.9 The core of democracy is not merely that the people govern themselves but
that they do so reflectively and deliberately.10 Freedom of expression is a prerequisite for the
entire people to be able to influence decision-making but also a means for each citizen to develop
a form of internal autonomy that lies in reflectively forming the political opinions she expresses
in the democratic process.11 When political autonomy is perceived to require processes of
reflective opinion formation, then there is no longer a conflict between democracy and freedom
of expression. Freedom of expression is justified not as a prerequisite for the majority getting its
way but with reference to what is required for a legitimate process of opinion and will formation.
A legitimate democratic process requires that only relevant preferences and convictions
influence political outcomes,12 i.e. preferences and convictions formed on the basis of the best
reasons or autonomously.

Champion Briefs

149

AFF: Free Speech Autonomy AC

January/February 2017

Deliberation is necessary for the search for a common good


in a democracy.
Rostbll, Christian. "Freedom Of Expression, Deliberation, Autonomy And Respect." European
Journal of Political Theory. January 2011. Web. December 07, 2016.
<http://ept.sagepub.com/content/10/1/5.full.pdf+html>.
Deliberative democracy is internally related to freedom of expression because it is a model of
democracy that presupposes autonomy. This makes it an autonomy- based theory; however, I do
not think that the interesting objection is that deliberative democracy is based on autonomy as a
conception of the good (as Kukathas objects to) or that the correlative justification of freedom of
expression requires that one embrace autonomy as the fundamental human good (as Cohen
would object to). In the preceding argument, autonomy does not figure as a human good;
personal autonomy is seen not as a fundamental but only as a derivative value. There is a clear
priority of the right over the good, as understood by Rawls, in the deliberative democratic view
of the common good as I have described it. Citizens searching for the common good in
deliberation give priority to the aim to specify the boundaries that mens system of ends must
respect.45 The collective exercise of moral autonomy has been justified as internally connected
to this view of the right; not as a human good that must be maximized.

Champion Briefs

150

AFF: Free Speech Autonomy AC

January/February 2017

Self-reflection in a democracy holds value if it holds value


for the greater society.
Rostbll, Christian. "Freedom Of Expression, Deliberation, Autonomy And Respect." European
Journal of Political Theory. January 2011. Web. December 07, 2016.
<http://ept.sagepub.com/content/10/1/5.full.pdf+html>.
Is the implication of the preceding argument that there should be no (legal and moral) constraints
on how people speak to one another? Does it for example mean that the Muhammad cartoons
were a perfectly legitimate form of expression because they contribute to self-reflection among
its addressees? This conclusion would only be warranted if one held that self-reflection is an end
in itself, whereas I have argued that deliberative democracy is not committed to personal
autonomy as a fundamental human good. Rather, the aim is to determine what is equally good
for all and exercise moral autonomy in common. Self-reflection is only valuable from the
deliberative perspective if it leads to mutual learning processes about the common good.
Moreover, we must remember the epistemological argument, according to which moral insight
only develops in communication among diverse but mutually respectful human beings. The
epistemic aim of deliberation is thus served not by any and all attempts at provoking selfreflection but requires mutual respect. Why is that? The key reason is that dis- respectful speech
might discourage the addressees from participating in public deliberation. Some forms of
disrespectful expression might be conversation stoppers, because they aim at others as targets
rather than potential conversation partners.47 Some forms of speech lead to fear, flight or fight
rather than any learning process.48 Thus, I suggest that public expression should be constrained
by the ideal of not discouraging or disabling others from participating in public deliberation as
equals.49

Champion Briefs

151

AFF: Free Speech Autonomy AC

January/February 2017

Open dialogue allows people to come to a place of mutual


understanding.
Rostbll, Christian. "Freedom Of Expression, Deliberation, Autonomy And Respect." European
Journal of Political Theory. January 2011. Web. December 07, 2016.
<http://ept.sagepub.com/content/10/1/5.full.pdf+html>.
Constraints on public expression should ideally be products of learning processes and selfimposed and not legally imposed or products of fear. Everyone ought to express him- or herself
in ways that he or she, following his or her best judgement, believes does not discourage others
from participating in public deliberation. The latter constraint might, however, lead to timidity
and so much fear of offending others that important issues are not discussed, and particularly in a
society in which people from different cultural or religious backgrounds tend to misunderstand
and distrust each other this can be inhibiting for public deliberation and its epistemic aims. Under
such conditions, it is essential that citizens also give each other some leeway for making errors
and do not take any mistake or small provocation as a sign of disrespect. The condition for this is
that people generally regard each other as being committed both to common deliberation and to
promoting the degree of self-reflection required for living together on equal terms. If what we
might refer to as an overall public culture of mutual respect exists, then minor instances of
disrespectful expression should be tolerated. The aim of creating a public culture of mutual
respect imposes obligations on both speakers and listeners. Listeners (or viewers) can only be
expected to give speakers some leeway for making errors if they have reason to think that the
latter were actually attempting to promote common deliberation and mutual respect. Conversely,
listeners must give speakers reason to think that they, in general, are committed to participating
in common learning processes, to speaking and listening as equals, and not merely interested in
creating antagonism with speakers.

Champion Briefs

152

AFF: Free Speech Autonomy AC

January/February 2017

Censoring speech on campuses risks politically polarizing


the speech on campus.
Welch, Benjamin. "An Examination Of University Speech Codes Constitutionality And Eir
Impact On High-Level Discourse." DigitalCommons@University of NebraskaLincoln.
August 01, 2014. Web. December 07, 2016.
<http://digitalcommons.unl.edu/journalismdiss/40 >.
The consequences of censoring opinions more typical of one side of the political spectrum is a
great cause for concern though not exactly surprising in todays political climate. Extensive
studies have shown that the weight of Americas growing political polarization is more increased
than in eras past, as technology has advanced to the point where individuals are able to intake
content through cyber environments wherein likeminded people confirm pre-existing opinions,
causing an echo chamber that leaves no room for new thoughts and ideas.12 Sociologist Diana
C. Mutz has confirmed this in her studies, writing that those with the highest level of education
have the lowest levels of exposure to people with viewpoints in opposition to their own.
Conversely, those who have not even graduated from high school are subjected to the largest
amount of differing viewpoints and diverse discussion.13

Champion Briefs

153

AFF: Free Speech Autonomy AC

January/February 2017

A2 Autonomy AC: There is a high ambivalence of first


amendment issues by high school students.
Welch, Benjamin. "An Examination Of University Speech Codes Constitutionality And Eir
Impact On High-Level Discourse." DigitalCommons@University of NebraskaLincoln.
August 01, 2014. Web. December 07, 2016.
<http://digitalcommons.unl.edu/journalismdiss/40 >.
Perhaps, though, the belief in censorship isnt indoctrinated in college but before; of 100,000
high school students surveyed by the John S. and James L. Knight Foundation in 2004, 73
percent either felt ambivalent about the First Amendment or took it for granted. In
Academically Adrift, Richard Arum and Josipa Roksa found that 45 percent of students show
almost no improvement in critical thinking, analytical reasoning, problem solving and writing,
during their time in college. They also found that very few students knew how to make or
break an argument. Students in schools of education and social work showed the lowest
improvement in critical-thinking skills, with business students not far behind. Those in the math
and science fields showed greatest improvement.

Champion Briefs

154

AFF: Free Speech Autonomy AC

January/February 2017

College students find free speech issues incredibly important


in regards to their rights.
PEN America. "And Campus For All.". October 17, 2016. Web. December 07, 2016.
<https://pen.org/on-campus>.
Several recent studies have examined how increasingly diverse university populations regard
freedom of speech. No study of these issues is perfect, and valid methodological questions can
be raised that suggest that this data should not form the basis of too many rm
conclusions.69 That said, the survey results are interesting. An October 2015 study by
McLaughlin Associates conducted for the William F. Buckley program at Yale, based on a
September 2015 survey of 800 undergraduates nationally, revealed that 70 percent of students
rank free speech at their college or university as very important to them personally. Eightyseven percent say they approve of the job their university is doing in protecting free speech.
Seventy percent say they support the university doing more to promote the diversity of
opinions on campus. Approximately half of those surveyed say that they have had the
experience of being intimidated when sharing views and opinions that differed from those of
their professors or instructors. Sixty-three percent of those surveyed think that
political correctness on campuses is a problem, whereas just 28 percent do not think so. And
yet, in the same survey, 51 percent of students say they support speech codes with just 36
percent opposed. Sixty-three percent favor trigger warnings, with just 23 percent opposed. Just
68 percent are able to identify which of the 27 amendments to the U.S. Constitution is devoted to
free speech, and just 52 percent are aware that the First Amendment protects hate speech.Among
those surveyed, 72 percent favor disciplinary ac- tion for a student or faculty member who uses
language that is considered racist, sexist homophobic or otherwise o ensive. Fi y percent of
students support (and just 40 percent oppose) colleges banning political cartoons that would
criticize any particular religion, religious groups or ethnic groups.70

Champion Briefs

155

AFF: Free Speech Autonomy AC

January/February 2017

The state's legitimacy depends on respect for equality--the


state only respects autonomy if it allows free speech in all
circumstances.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
My premises are: (i) that the legitimacy of the state depends on its respect for peoples equality
and autonomy and (ii) that as a purely formal matter, the state only respects peoples autonomy if
it allows people in their speech to express their own values no matter what these values are and
irrespective of how this expressive content harms other people or makes government processes
or achieving governmental aims difficult. Achievement of more substantive aims, such as
helping people experience fulfillment and dignity, must occur with a legal structure that as a
formal matter respects peoples equality and autonomy.

Champion Briefs

156

AFF: Free Speech Autonomy AC

January/February 2017

Free Speech is essential to personal dignity and autonomy


Protecting communication is the way to ensure agency.
Tsesis, Alexander. "FREE SPEECH CONSTITUTIONALISM." UNIVERSITY OF ILLINOIS
LAW REVIEW. May 21, 2015. Web. December 07, 2016.
<https://poseidon01.ssrn.com/delivery.php?ID=102065004071020074093008015067029
077054008067084052039088087093121110001072071010065097018031059009044096
126006072028005111005031069088002093028094096071070112067027083041066004
064093012127121006030103080069066117031080031017089016112082007121007001
&EXT=pdf>.
One of the most often stated rationales for protecting free speech is societys obligation to
safeguard the right of thoughtful and articulate persons to communicatively exercise their
intellectual capacities.52 This view gets at the important truth that speech is a dignitary interest
of each autonomous human being. Revealing ones ideas to others is a factor for anyone, which
is to say every cognizant person, wishing to relate and convey facts, views, commands, and
inquiries to others.53 Personal identity is tied to the ability to formulate opinions and ascertain
facts. Freedom of speech enables everyone to explore the innermost workings of his or her mind
and to spread knowledge. All humans engage in the construction of semantical and syntactic
combinations of words, symbols, or other forms of categorization meant to interact with others
and to gain their attention.54 Communication allows us to share what we have learned, our
preferences, criticisms, pains, joys, and all the various experiences contained within our personal
senses that would remain purely phenomenological without language, signs, and sometimes even
grunts and gestures. The speaker may be seeking change, catharsis, or intimacy. As accurate as
the personal autonomy perspective is in recognizing the agency aspect of free speech,55
scholars, whose views I parse later in this Section, are mistaken to isolate it as the only reason
behind First Amendment protection. As Justice Brennan pointed out in one of his dissents, free
expression fosters self-government, and is intrinsic to individual liberty and dignity, and
advances societys search for truth.56

Champion Briefs

157

AFF: Free Speech Autonomy AC

January/February 2017

The preservation of Free Speech is net beneficial in both a


deontological, and consequentialist framework.
Tsesis, Alexander. "FREE SPEECH CONSTITUTIONALISM." UNIVERSITY OF ILLINOIS
LAW REVIEW. May 21, 2015. Web. December 07, 2016.
<https://poseidon01.ssrn.com/delivery.php?ID=102065004071020074093008015067029
077054008067084052039088087093121110001072071010065097018031059009044096
126006072028005111005031069088002093028094096071070112067027083041066004
064093012127121006030103080069066117031080031017089016112082007121007001
&EXT=pdf>.
Interestingly, Brennans characterization is both deontological, because it recognizes
governments obligation to the person, and consequentialist, because it aknowledges the social
value of articulation. The human will to state ones insights and demonstrate personality traits,
some of which may be novel and controversial and others conservative and statist, typically
withstands governmental interests to censure them.57 The right to challenge authority and
provoke dispute or, on the other hand, to argue against change are not, therefore, derived from
the First Amendment but preserved by it.58 The sense that people must retain the ability to
express their views and ideas is preconstitutional, tied as it is to the natural human desire to
communicate.

Champion Briefs

158

AFF: Kant AC

January/February 2017

Kant AC


This aff is pretty straightforward. Because human freedom ought to be inviolate, no
restrictions on free speech are justified even if they serve some greater good. To win this case,
you need to argue that free speech is a fundamental human right (connected to our rational
capacities), and that restrictions on speech could not be universalized under the Categorical
Imperative. Kant himself wrote about the importance of freedom of the pen, and that could be
incorporated into an aff that focuses on written speech.
The strategy behind this affirmative is to undermine negative PIC (plan-inclusive
counterplan) ground. Because the resolution says any restrictions, the neg will be inclined to
say allow for speech in all instances except x in order to resolve the affirmatives harms. The
Kant aff is built to answer these PICs very effectively. The PIC could not be universalized
because it would be a contradiction in the will to both extend free speech and limit it at the same
time.
The best negative answer to this case is that we should adopt a utilitarian understanding
of rights. Its not really practical for universities to grant absolute freedom to students, and
college administrators ultimately have to decide whether some restrictions are conducive to the
well-being of the campus. Another argument to explore is that public colleges and universities
are not rational agents in a Kantian sense. Kantian ethics might make sense for the individual,
rational agent, but the governing bodies of universities are comprised of a collection of agents
who do not always share the same reasons and values. The affirmative could always appeal to
the essential liberties of the Constitution, as well as the marketplace of ideas, to push back
against these arguments.

Champion Briefs

159

AFF: Kant AC

January/February 2017

Freedom requires public use of one's reason--that's best


achieved through freedom of speech.
Surprenant, Chris. "Kant On The Virtues Of A Free Society." Libertarianism.org. April 07, 2015.
Web. December 07, 2016. <https://www.libertarianism.org/columns/kant-virtues-freesociety>.
Kants emphasis on rationality and the development of an individuals own faculty of
understanding plays an important role in his moral and political philosophy. In his essay, What
is Enlightenment?, he begins by noting that enlightenment is a human beings emergence from
his self-incurred minority [or childhood], which is the inability to make use of ones own
understanding without direction from another [person] (E 8:35). Kant claims that for this
enlightenment to take place, nothing is required but freedomnamely, freedom to make public
use of ones reason in all matters (E 8:36). By public use of ones reason, he means that use
which someone makes of it as a scholar before the entire public of the world of readers (E
8:37). More simply put: freedom of speech through the press.
*Ellipsis from source

Champion Briefs

160

AFF: Kant AC

January/February 2017

Freedom of speech is fundamental to the protection of


individual rights.
Surprenant, Chris. "Kant On The Virtues Of A Free Society." Libertarianism.org. April 07, 2015.
Web. December 07, 2016. <https://www.libertarianism.org/columns/kant-virtues-freesociety>.
Kants defense of free speech is fairly consistent throughout his work, where, more often than
not, it is linked to his support for the policies and practices of Frederick the Great. But in his
Theory and Practice essay, he presents a defense of free speech more generally, commenting
on the importance of free speech and its contribution to a free society. He writes: [F]reedom of
the penis the sole palladium of the peoples rights. For to want to deny them this freedom is
not only tantamount to taking from them any claim to a right with respect to the supreme
commander (according to Hobbes), but is also to withhold from the latterall knowledge of
matters that he himself would change if he knew about them and to put him in contradiction with
himself (TP 8:304).

Champion Briefs

161

AFF: Kant AC

January/February 2017

Restrictions on free speech can't be universalized.


Surprenant, Chris. "Kant On The Virtues Of A Free Society." Libertarianism.org. April 07, 2015.
Web. December 07, 2016. <https://www.libertarianism.org/columns/kant-virtues-freesociety>.
The second point is a bit less straightforward. His claim is that a sovereign that outlaws free
speech creates a condition where his actions put him in contradiction with himself. This
language is remarkably similar to what he uses in his moral theory to describe principles that
violate the categorical imperative, Kants supreme principle of morality. In the Groundwork,
Kant claims that when a principle of action fails when tested against the categorical imperative, it
fails because something about that principle is contradictory. It may be the case that it is not
possible to conceive of the action that comes about as a result of universalizing the underlying
principle connected to the action (i.e., a contradiction in conception), or the result of
universalizing the principle is self-defeating in some way (i.e., a contradiction in the will).

Champion Briefs

162

AFF: Kant AC

January/February 2017

Free speech is necessary to cultivate our reason.


Surprenant, Chris. "Kant On The Virtues Of A Free Society." Libertarianism.org. April 07, 2015.
Web. December 07, 2016. <https://www.libertarianism.org/columns/kant-virtues-freesociety>.
In addition to these two, practical, political benefits, and as discussed previously, free intellectual
exchange also is a necessary condition for individual enlightenment. And so while Kants
position on the function of juridical law differs from Aristotle, they share the belief that an
individual can live well only if he is a member of civil society (cf. Pol 1278b 21-24). Living in a
free society makes enlightenment possible. Therefore, while Kants race of devils passage
suggests that the possibility of a free society does not depend on the presence of enlightened or
virtuous citizens, an individuals ability to become enlightened does depend on his living in a
free society.

Champion Briefs

163

AFF: Legalism AC


January/February 2017

Legalism AC

The legalism AC is likely going to be a very common affirmative on this topic. This AC
is great because it is very adaptable and can be cut down for more traditional debaters or added
onto for national circuit rounds. The Legalism AC follows the general principle that you should
do X because it is coherent with the law. In the case of the resolution, this statement would be
The United States ought NOT ban constitutionally protected free speech on public universities
because free speech is protected by the law.
This may seem like a redundant argument given that the resolution specifies the
constitution, however it becomes more nuanced in that the affirmative framework would be
claiming that the law is a normative force for action. This framework could be applied in several
ways including a) The law is good because it leads to good consequences b) the constitution is
axiomatically good c) the law in general is axiomatically good. The contention levels will remain
relatively the same by citing various Supreme Court cases, laws, legal standards etc. that show
that free speech is protected on public college campuses.
Many of the cards in this file are taken straight from Supreme Court rulings or law texts.
When doing your own research, be careful to not cut any evidence applying to private
universities. This AC should be very fast to assemble given that the cards dont need as much
flow because they each act as an independent justification. The danger in reading an affirmative
like this lies in the framework debate as descriptive standards are heavily contested and there are
many things in the law that are hard to defend as good.

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International law negates.


Bell, Jeannine. "Restraining The Heartless: Racist Speech And Minority Rights." INDIANA
LAW JOURNAL Vol. 84:963-979. Summer 2009. Web. December 03, 2016.
<http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1132&context=ilj>.
The approach taken by countries around the world to place restrictions on racist speech is also
reflected in the European Convention for the Protection of Human Rights and Fundamental
Freedoms, the International Covenant on Civil and Political Rights, and the International
Convention on the Elimination of All Forms of Racial Discrimination. These human rights
instruments, though they explicitly protect freedom of expression, also recognize the link
between hate speech and discrimination and allow significant restrictions on hate speech.106
Article 20(2) of the International Covenant on Civil and Political Rights states that any
advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.107 Article 4 of the International Convention on
the Elimination of All Forms of Racial Discrimination requires governments to outlaw all
dissemination of ideas based on racial superiority or hatred. It also requires them to prohibit all
organizations which promote and incite racial discrimination.108

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A2 Hate Speech: Recent SCOTUS cases allow the limitation


of some forms of hate speech that incite violence, such as
cross-burning. If it is intimidation or incites violence, it is not
constitutionally protected.
Bell, Jeannine. "Restraining The Heartless: Racist Speech And Minority Rights." INDIANA
LAW JOURNAL Vol. 84:963-979. Summer 2009. Web. December 03, 2016.
<http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1132&context=ilj>.
When Black was argued before the Supreme Court, the Commonwealth maintained that the
cross-burning statute merely signaled its wish to prevent an especially pernicious form of
intimidation.93 In support of its contention that the statute was content neutral, the
Commonwealth highlighted both the statutes content-neutral language and the existence of
several racially discriminatory laws at the time the cross- burning statute was passed as evidence
that it was not interested in proscribing the message in cross burning. Rather, according to this
argument, the fact that the Commonwealth had not eliminated the racially discriminatory laws at
the time the cross-burning statute was passed indicated that the statute was not directed at White
supremacists views.
In its decision upholding the ability of jurisdictions to regulate cross burning in particular
circumstances, though mindful of the cross burners right to freedom of expression, the Supreme
Court gave far more deference than it had in R.A.V. to the way cross burning has been used
historically to terrorize Black Americans. The opinion began with a long description of the
historical use of cross burning. The Court maintained that [t]he person who burns a cross
directed at a particular person often is making a serious threat, meant to coerce the victim to
comply with the Klans wishes unless the victim is willing to risk the wrath of the Klan.94
After condemning the historical use of cross burning by the Klan, the Court divided cross
burnings into two categories: (1) cross burnings in which the perpetrator had intended to
intimidate, and (2) those in which the perpetrator had no wish to intimidate listeners. The second
category consists of cross burning that occurs in several different contexts, for instance, when
cross burning is used as a statement of ideology, as a sign of group solidarity, or, finally, purely
for artistic expression.95 The Courts decision allows states to regulate the first category, cross
burnings undertaken with the intent to intimidate. Justice OConnor located the rationale for this
allowance in one of the exceptions to the general prohibition on content-based regulation created
by the Court in the R.A.V. case. Under this exception, when the State is attempting to regulate a
subset of a category that may be excluded, the entire category may be prohibited.96 The second
category, referred to by Justice Thomas in his dissent as innocent cross burnings,97 is
identified by the Court as core political speech, and the decision prohibits states from regulating
it.98

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Bell, Jeannine. "Restraining The Heartless: Racist Speech And Minority Rights." INDIANA
LAW JOURNAL Vol. 84:963-979. Summer 2009. Web. December 03, 2016.
<http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1132&context=ilj>.
The U.S. approach to regulation of racist speech is one of broad protection, with the exception of
situations in which such speech is coupled with violence. Attempts to regulate racist speech on
college campuses has largely failed, with hate speech codes challenged at the University of
Michigan99 and the University of Wisconsin.100 Interestingly enough, research in this area
reveals that, though the universities whose codes were held unconstitutional complied by
removing their codes, twenty-five percent of schools nationwide failed to comply with court
decisions and left their codes intact.101 In the public arena, after R.A.V., racist speech is subject
to little regulation and may not be prohibited simply because the State disfavors the viewpoint it
offers. Wisconsin v. Mitchell and Virginia v. Black, the cross-burning cases that left R.A.V.
intact, are the Courts two most recent statements on racist speech, and they permit regulation of
racist speech. Taken together, these final two cases suggest that the safest path to the regulation
of racist speech, from a First Amendment perspective, is to regulate racist speech only when it is
coupled with violence.

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John Doe v University of Michigan ruled that despite the


harms free speech is paramount.
Brison, Susan. "The Autonomy Defense Of Free Speech." Ethics Vol. 108, No. 2, pp. 312-339.
January 1998. Web. December 05, 2016.
<http://www.jstor.org/stable/10.1086/233807?seq=1#page_scan_tab_contents>.
Likewise, in John Doe v. University of Michigan, an opinion ruling un- constitutional a
University of Michigan policy on discrimination and dis- criminatory harassment, Judge Avern
Cohn wrote: It is an unfortunate fact of our constitutional system that the ideals of freedom and
equality are often in conflict. The difficult and sometimes painful task of our po- litical and legal
institutions is to mediate the appropriate balance be- tween these two competing
values. 17 Judge Cohn concluded that while the Court is sympathetic to the Universitys
obligation to ensure equal educational opportunities for all of its students, such efforts must not
be at the expense of free speech.18 In 1992, the U.S. Supreme Court ruled unconstitutional a
Saint Paul, Minnesota, ordinance that made it a mis- demeanor to place on public or private
property a symbol, object, [etc.] which one knows or has reasonable grounds to know arouses
anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.

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January/February 2017

The only exceptions to the First Amendment are fighting


words-hate speech is protected.
Volokh, Eugene. "No, Theres No hate Speech Exception To The First Amendment." The
Washington Post. May 07, 2015. Web. December 05, 2016.
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theresno-hate-speech-exception-to-the-first-amendment/?utm_term=.604b0397595c>.
To be sure, there are some kinds of speech that are unprotected by the First Amendment. But
those narrow exceptions have nothing to do with hate speech in any conventionally used sense
of the term. For instance, there is an exception for fighting words face-to-face personal
insults addressed to a specific person, of the sort that are likely to start an immediate fight. But
this exception isnt limited to racial or religious insults, nor does it cover all racially or
religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish
bigoted fighting words, the Supreme Court held that this selective prohibition was
unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting
words would indeed be permissible.

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January/February 2017

Any legal restrictions on libel hate speech are not coherent


legal standards.
Volokh, Eugene. "No, Theres No hate Speech Exception To The First Amendment." The
Washington Post. May 07, 2015. Web. December 05, 2016.
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theresno-hate-speech-exception-to-the-first-amendment/?utm_term=.604b0397595c>.
The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a group libel law that
outlawed statements that expose racial or religious groups to contempt or hatred, unless the
speaker could show that the statements were true, and were said with good motives and for
justifiable ends. But this too was treated by the Court as just a special case of a broader First
Amendment exception the one for libel generally. And Beauharnais is widely understood to
no longer be good law, given the Courts restrictions on the libel exception. See New York Times
Co. v. Sullivan (1964)

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January/February 2017

A2 Legalism AC: Hostile Environment laws exist that


protect people from bigoted speech in places like colleges.
Volokh, Eugene. "No, Theres No hate Speech Exception To The First Amendment." The
Washington Post. May 07, 2015. Web. December 05, 2016.
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theresno-hate-speech-exception-to-the-first-amendment/?utm_term=.604b0397595c>.
Finally, hostile environment harassment law has sometimes been read as applying civil
liability or administrative discipline by universities to allegedly bigoted speech in
workplaces, universities, and places of public accommodation. There is a hot debate on whether
those restrictions are indeed constitutional; they have generally been held unconstitutional when
applied to universities, but decisions are mixed as to civil liability based on speech that creates
hostile environments in workplaces (see the pages linked to at this site for more information on
the subject). But even when those restrictions have been upheld, they have been justified
precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society at
large, but only apply to particular contexts, such as workplaces. None of them represent a hate
speech exception, nor have they been defined in terms of hate speech.

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A2 Legalism AC: Supreme Court doesnt have an absolutist


approach to speech issues. Numerous objections to free
speech have been affirmed by the Supreme Court.
Brison, Susan. "The Autonomy Defense Of Free Speech." Ethics Vol. 108, No. 2, pp. 312-339.
January 1998. Web. December 05, 2016.
<http://www.jstor.org/stable/10.1086/233807?seq=1#page_scan_tab_contents>.
It might be thought, however, that the problem about restricting hate speech is a pseudoproblem,
at least practically speaking, since hate speech, being speech, after all, is protected by the First
Amendment. So, it might be claimed, however desirable one might consider restrictions to be,
they could never be found to be constitutional. But the Supreme Court has not followed the
absolutist interpretation of the First Amendment that one might have thought could be read off
its straightforward wording: Congress shall make no law abridging the freedom of speech, or
of the press. (The Fourteenth Amendment due process guarantee is taken to apply this
constraint to the states as well.) In spite of Justice Blacks famous statementI read no law
abridging to mean no law abridgingthe courts have considered many categories of speech
to be unprotected.23 Some examples of speech the courts have over the years considered to be
unprotected (or less protected than other categories of speech) are: words posing a clear and
present dan- ger that they will bring about the substantive evils that Congress has a right to
prevent;24 fighting words;25 libel of private individuals;26 ob- scenity;27 and false
advertising and advertising of harmful, but legal, products or activities.28 With the exception of
fighting words, however, none of these categories has been taken to include hate
speech.29 And even though some hate speech ordinances have classified hate speech as
fighting words, they have not defined hate speech as all and only fighting words, and so
have been ruled unconstitutional in the courts.30
*Ellipsis from source

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The Supreme Court affirms the necessity of free speech to a


functioning democracy.
Warren, Earl. "SWEEZY V. NEW HAMPSHIRE.". June 17, 1957. Web. December 05, 2016.
<http://caselaw.findlaw.com/us-supreme-court/354/234.html>.
The essentiality of freedom in the community of American universities is almost self-evident. No
one should underestimate the vital role in a democracy that is played by those who guide and
train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and
universities would imperil the future of our Nation. No field of education is so thoroughly
comprehended by man that new discoveries cannot yet be made. Particularly is that true in the
social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot
flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain
free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our
civilization will stagnate and die. Equally manifest as a fundamental principle of a democratic
society is political freedom of the individual. Our form of government is built on the premise that
every citizen shall have the right to engage in political expression and association. This right was
enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in
America has traditionally been through the media of political associations. Any interference with
the freedom of a party is simultaneously an interference with the freedom of its adherents. All
political [354 U.S. 234, 251] ideas cannot and should not be channeled into the programs of our
two major parties. History has amply proved the virtue of political activity by minority, dissident
groups, who innumerable times have been in the vanguard of democratic thought and whose
programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is
not to be condemned. The absence of such voices would be a symptom of grave illness in our
society.

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173

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The Supreme Court affirmed the unique importance of free


speech in schools as a means to promote the market place of
ideas.
Brennan, William. "KEYISHIAN V. BOARD OF REGENTS.". January 23, 1967. Web.
December 05, 2016. <http://caselaw.findlaw.com/us-supreme-court/385/589.html>.
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent
value to all of us and not merely to the teachers concerned. That freedom is therefore a special
concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over
the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in
the community of American schools." Shelton v. Tucker, supra, at 487. The classroom is
peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through
wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of
tongues, [rather] than through any kind of authoritative selection." United States v. Associated
Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, , we said: "The essentiality of
freedom in the community of American universities is almost self-evident. No one should
underestimate the vital role in a democracy that is played by those who guide and train our
youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities
would imperil the future of our Nation. No field of education is so thoroughly comprehended by
man that new discoveries cannot yet be made. Particularly is that true in the social sciences,
where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an
atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire,
to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will
stagnate and die."

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174

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Though the Supreme court says that Free Speech applies


with less force at universities it still affirms its importance.
Powell, Lewis. "Healy V James.". June 26, 1972. Web. December 05, 2016.
<http://caselaw.findlaw.com/us-supreme-court/408/169.html>.
At the outset we note that state colleges and universities are not enclaves immune from the
sweep of the First Amendment. "It can hardly be argued that either students or teachers shed
their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v.
Des Moines Independent School District, 393 U.S. 503, 506 (1969). Of course, as Mr. Justice
Fortas made clear in Tinker, First Amendment rights must always be applied "in light of the
special characteristics of the environment" in the particular case. Ibid. And, where stateoperated educational institutions are involved, this Court has long recognized "the need for
affirming the comprehensive authority of the States and of school officials, consistent with
fundamental constitutional safeguards, to prescribe and control conduct in the schools." Id., at
507. Yet, the precedents of this Court leave no room for the view that, because of the
acknowledged need for order, First Amendment protections should apply with less force on
college campuses than in the community at large. Quite to the contrary, "[t]he vigilant protection
of constitutional freedoms is nowhere more vital than in the community of American schools."
Shelton v. Tucker, 364 U.S. 479, 487 (1960). The college classroom with its surrounding
environs is peculiarly the "`marketplace of ideas,'" and we break no new constitutional ground in
reaffirming this Nation's dedication to safeguarding academic [408 U.S. 169, 181] freedom.
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U.S.
234, 249 -250 (1957) (plurality opinion of Mr. Chief Justice Warren), 262 (Frankfurter, J.,
concurring in result).
*Ellipsis from source

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There is a laundry list of cases supporting the idea that


state colleges and universities are not enclaves immune
from the sweep of the First Amendment..
United States Supreme Court. "Papish V. University Of Missouri Curators.". March 19, 1973.
Web. December 05, 2016. <http://caselaw.findlaw.com/us-supreme-court/410/667.html>.
This case was decided several days before we handed down Healy v. James, 408 U.S.
169 (1972), in which, while recognizing a state university's undoubted prerogative [410 U.S.
667, 670] to enforce reasonable rules governing student conduct, we reaffirmed that "state
colleges and universities are not enclaves immune from the sweep of the First Amendment." Id.,
at 180. See Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). We think
Healy makes it clear that the mere dissemination of ideasno matter how offensive to good taste
on a state university campus may not be shut off in the name alone of "conventions of decency."
Other recent precedents of this Court make it equally clear that neither the political cartoon nor
the headline story involved in this case can be labeled as constitutionally obscene or otherwise
unprotected. E. g., Kois v. Wisconsin, 408 U.S. 229 (1972); Gooding v. Wilson, 405 U.S.
518 (1972); Cohen v. California, 403 U.S. 15 (1971). 5 There is language in the opinions below
which suggests that the University's action here could be viewed as an exercise of its legitimate
authority to enforce reasonable regulations as to the time, place, and manner of speech and its
dissemination. While we have repeatedly approved such regulatory authority, e. g., Healy v.
James, 408 U.S., at 192-193, the facts set forth in the opinions below show clearly that petitioner
was expelled because of the disapproved content of the newspaper rather than the time, place, or
manner of its distribution. 6 [410 U.S. 667, 671]

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Colleges carry the essence of a public forum. This is in


concurrence with the Idea that they ought to be a
marketplace of ideas- Supreme Court Affirms.
Powell, Lewis. "Windmar Vs Vincent.". December 08, 1981. Web. December 05, 2016.
<http://caselaw.findlaw.com/us-supreme-court/454/263.html>.
This Court has recognized that the campus of a public university, at least for its students,
possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v.
Mosley,408 U.S. 92 (1972); Cox v. Louisiana, 379 U.S. 536 (1965). "The college classroom with
its surrounding environs is peculiarly `the marketplace of ideas.'" Healy v. James, 408 U.S. 169,
180(1972). Moreover, the capacity of a [454 U.S. 263, 268] group or individual "to participate
in the intellectual give and take of campus debate [would be] limited by denial of access to
the customary media for communicating with the administration, faculty members, and other
students." Id., at 181-182. We therefore have held that students enjoy First Amendment rights of
speech and association on the campus, and that the "denial [to particular groups] of use of
campus facilities for meetings and other appropriate purposes" must be subjected to the level of
scrutiny appropriate to any form of prior restraint. Id., at 181, 184.
*Ellipsis from source

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A2 Legalism AC: The United States is alone in its


determined protection of free speech.
Carmi, Guy. "DIGNITY VERSUS LIBERTY: THE TWO WESTERN CULTURES OF FREE
SPEECH." University of Virginia School of Law. August 22, 2008. Web. December 06,
2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1246700>.
Many commentators have noted that [t]he United States stands alone, even among democracies,
in the extraordinary degree to which its consti- tution protects freedom of speech and of the
press.431 Fredrick Schauer notes that the First Amendment, as authoritatively interpreted,
remains a recalcitrant outlier to a growing international understanding to what the freedom of
expression entails. In numerous dimensions the American approach is exceptional.432 He
rightly points out that the American understanding of freedom of expression is substantially
exceptional com- pared to international standards because a range of American outcomes and
American resolutions of conflicts between freedom of expression and other rights and goals are
strikingly divergent from the outcomes and res- olutions reached in most other liberal
democracies.433 The First Amendment being first is not a statement concerning its relative
importance among all of initial constitutional amendments. Orig- inally, the First Amendment
was the third amendment within the list of the twelve amendments Congress submitted for
ratification by the states in 1789.434 This interesting historical anecdote is not widely known,
and many may speculate that freedom of expression was purposely chosen as the first right to be
enumerated in the Bill of Rights. Yet, at least from a psychological perspective, the modern
primacy of the First Amendment may be affected by its position within the Bill of Rights.

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January/February 2017

The 1st amendment creates a standard, not a defined rule.


However in the context of enforcement rules and standards
are interchangeable.
Carmi, Guy. "DIGNITY VERSUS LIBERTY: THE TWO WESTERN CULTURES OF FREE
SPEECH." University of Virginia School of Law. August 22, 2008. Web. December 07,
2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1246700>.
The dispute among absolutists and non-absolutists regarding the nature of the First Amendment
seems to be resolved. As David Faigman articu- lates, [M]any rules are really standards in
disguise,445 and it seems that the absolutists have wrongly classified the First Amendment as a
rule.446 Nonetheless, the absolutist imprints on First Amendment juris- prudence are longlasting. Surviving absolutist instincts heavily influence the treatment of the First Amendment as
something that should not be bent, and the notion that free speech exceptions should be narrowly
tailored. Although the First Amendment is a standard and not a rule, First Amendment
jurisprudence has developed this standard, over the years, to a quite clear set of rules.447 This
gradual development of rules was por- trayed by David Strauss as the Common-law
Constitution.448 Schauer suggests that the rule/standard disparity between the U.S. and other
sys- tems may partially stem from the different developmental stage in which freedom of
expression jurisprudence has evolved and that in several decades other democracies may also
derive more rules from their free- dom of expression standards.449

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January/February 2017

The 1st amendment creates a standard, not a defined rule.


However in the context of enforcement rules and standards
are interchangeable.
Carmi, Guy. "DIGNITY VERSUS LIBERTY: THE TWO WESTERN CULTURES OF FREE
SPEECH." University of Virginia School of Law. August 22, 2008. Web. December 07,
2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1246700>.
The dispute among absolutists and non-absolutists regarding the nature of the First Amendment
seems to be resolved. As David Faigman articu- lates, [M]any rules are really standards in
disguise,445 and it seems that the absolutists have wrongly classified the First Amendment as a
rule.446 Nonetheless, the absolutist imprints on First Amendment juris- prudence are longlasting. Surviving absolutist instincts heavily influence the treatment of the First Amendment as
something that should not be bent, and the notion that free speech exceptions should be narrowly
tailored. Although the First Amendment is a standard and not a rule, First Amendment
jurisprudence has developed this standard, over the years, to a quite clear set of rules.447 This
gradual development of rules was por- trayed by David Strauss as the Common-law
Constitution.448 Schauer suggests that the rule/standard disparity between the U.S. and other
sys- tems may partially stem from the different developmental stage in which freedom of
expression jurisprudence has evolved and that in several decades other democracies may also
derive more rules from their free- dom of expression standards.449

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Freedom of speech is very important, hate speech has been


protected time and time again.
PEN America. "And Campus For All.". October 17, 2016. Web. December 07, 2016.
<https://pen.org/on-campus>.
Freedom of expression in the United States is protected by the constitution. Under the supremacy
clause, the con- stitution, federal laws, and rati ed international treaties constitute the supreme
law of the land and override any contradictory laws or policies at the state or local
levels.25 Free speech is a bedrock legal and political value in the U.S. and a de ning element of
American identity, binding together a diverse nation through a shared commitment to an open
society. The First Amendment provides that: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to petition the government
for a redress of grievances.26 The First Amendment is a cornerstone of American law, politics,
and culture, considered 1rst among equals in the Bill of Rights. In a landmark decision written by
Justice Benjamin Cardozo in 1937, the Supreme Court termed free expression the matrix, the
indispensable condition of nearly every other form of freedom.27 The court has been especially
protective of hateful and offensive speech, even by extremist groups such as the American Nazi
Party and the Ku Klux Klan.28 In a 2011 case overturning a jury verdict against the Westboro
Baptist Church for organizing virulently homophobic protests at the funeral of a gay soldier
killed in Iraq, the court underscored the centrality of protecting unpopular views: Speech is
powerful. It can stir people to action, move them to tears of both joy and sorrow, andas it did
herein ict great pain. On the facts before us, we cannot react to that pain by punishing the
speaker. As a Nation we have chosen a di erent courseto protect even hurtful speech on public
is- sues to ensure than we do not sti e public debate.29 The Supreme Court has carved out
several narrowly defined exceptions to First Amendment protection, in- cluding fighting
words,30 threats and intimidation,31 ob- scenity,32 defamation,33 and harassment.34 The
Supreme Court has permitted restrictions on speech judged likely to incite imminent violence. It
also permits constraints on harassment, though any such restrictions on speech must be content
and viewpoint neutral and narrowly tailored to the circumstances. The American Bar Association has done a detailed analysis of the constitutional constraints on prohibiting and punishing
harassment on campus, observing that: Individuals have a First Amendment right to harass
anyone they want, in the lay sense of the word harassment as irritating or tormenting someone,
though the rights of school and college employees to do so in their professional capacities are
narrower than the free speech rights of students. Yet, when a person is called a fag or any other
derogatory term or epithet, or demeaned based on an immutable characteristic so o en and so
publicly that it im- pacts his or her peaceful enjoyment of the school or campus, then the right to
peaceful enjoyment is the highest priority, and there is no First Amendment right to engage in
discriminatory harassment.35

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AFF: Marketplace of Ideas AC



January/February 2017

Marketplace of Ideas AC
This aff says that public colleges and universities ought to be considered marketplaces of

ideas. The marketplace of ideas philosophy has been very influential in First Amendment
jurisprudence. The idea is that we ought to allow people to pick and choose, like consumers,
between a variety of competing ideas in a free and open marketplace. Restrictions on free
speech are antithetical to this view of freedom. Restrictions might be especially harmful to the
academic freedom on which college campuses thrive.
The best framework for this aff is one rooted in deliberative democracy and its
importance on a college campus. This topic gives us an excellent opportunity to delve into
theories of free speech, and the marketplace of ideas is one of them. Reading this affirmative
enables you to craft a more topic-applicable framework argument than the Kant aff (though
thats not to say you shouldnt consider writing the Kant affif I thought that, I wouldnt have
written the how-to!).
The best negative argument against this aff is that the marketplace analogy for free
speech is (a) somewhat flawed, and (b) actually justifies restrictions. I wont delve into the
myriad objections to the theory, but the reason it might justify restrictions is that any legitimate
market has regulations which enable an outside actor to intervene and curb the markets
excesses. The market might be desirable, but we shouldnt take a hands-off (laissez-faire)
approach to said market. The affirmative could always double down and say that a scenario of no
restrictions is better for that market, which might lead both debaters to delve into economic
theory.

Champion Briefs

182

AFF: Marketplace of Ideas AC

January/February 2017

Colleges have historically been sites of open debate--this is


key to diversity of thought and expanding people.
Maloney, Jr., Cliff. "Colleges Have No Right To Limit Students Free Speech." TIME. October
13, 2016. Web. December 07, 2016. <http://time.com/4530197/college-free-speechzone/>.
In grade school, I learned that debate is defined as a discussion between people in which they
express different opinions about something. Such open discourse was historically encouraged
on our college campuses. Universities exemplified intellectual discussion and debate in America.
No one voiced their opinions louder than students, professors and administrators. They pushed
societys limits by admitting women and people of color, and by encouraging diversity of
thought amongst the college community. Historically, young people flocked to universities to
learn more about the world around them, to encounter people from different backgrounds, to
expand their minds and to form their own opinions. Unfortunately, things have changed.
Recently on college campuses, our open discourse has been threatened, particularly when
discussing politics. While the current presidential election represents polarizing wings of both
the Democratic and Republican parties, we should be able to openly debate their policies and the
direction in which they plan to take our country if elected. We should be able to discuss the
abuse of power within our government and the consistent violations of our Bill of Rights. We
should be able to participate in the free market of ideas. But our students are being silenced.

Champion Briefs

183

AFF: Marketplace of Ideas AC

January/February 2017

Speech restrictions are on the rise on college campuses.


Maloney, Jr., Cliff. "Colleges Have No Right To Limit Students Free Speech." TIME. October
13, 2016. Web. December 07, 2016. <http://time.com/4530197/college-free-speechzone/>.
University campuses are now home to a plethora of speech restrictions. From sidewalk-sized
free-speech zones to the criminalization of microaggressions, Americas college campuses
look and feel a lot more like an authoritarian dictatorship than they do the academic hubs of the
modern free world. When rolling an inflated free-speech ball around campus, students at the
University of Delaware were halted by campus police for their activities. A Young Americans
for Liberty leader at Fairmont State University in West Virginia was confronted by security
when he was attempting to speak with other students about the ideas he believes in. A man at
Clemson University was barred from praying on campus because he was outside of the freespeech zone. And a student at Blinn College in Texas abolished her campus free-speech zone in
a lawsuit after administrators demanded she seek special permission to advocate for self-defense.

Champion Briefs

184

AFF: Marketplace of Ideas AC

January/February 2017

Limitations on speech on college campuses are antithetical to


the progression of ideas.
Maloney, Jr., Cliff. "Colleges Have No Right To Limit Students Free Speech." TIME. October
13, 2016. Web. December 07, 2016. <http://time.com/4530197/college-free-speechzone/>.
Instead of actually debating ideas that span topics from the conventional to the taboo, a
generation of American students dont engage, they just get enraged. In doing so, many students
believe that they have a right to literally shut other people up. This is not only a threat to the First
Amendment, but also to American democracy. In their manifestation, safe spaces and freespeech zones at public universities enable prejudice against unfavorable ideologies. Guised as
progressive measures to ensure inclusion, these often unconstitutional policies exclude new and
competing ideas, and are antithetical to a free academia. In excluding different ideologies,
supposedly progressive campus speech codes do one thing: prevent the progression of ideas.
Restrictive campus speech codes are, in fact, regressive.

Champion Briefs

185

AFF: Marketplace of Ideas AC

January/February 2017

Limit on campus speech start us down a slippery slope


which implicates the First Amendment more broadly.
Maloney, Jr., Cliff. "Colleges Have No Right To Limit Students Free Speech." TIME. October
13, 2016. Web. December 07, 2016. <http://time.com/4530197/college-free-speechzone/>.
America is a land rooted in the ideas of a free society: the freedom to be who you are, to speak
your mind and to innovate. By silencing our students and young people, we have started down a
slippery slope. It is up to us to fight back to ensure that our First Amendment rights remain
protectednot just on college campuses, but everywhere in America.

Champion Briefs

186

AFF: Marketplace of Ideas AC

January/February 2017

The First Amendment embodies the philosophy of the


marketplace of ideas.
Trama, Zachary. "Keeping The Marketplace Of Ideas Open In Schools." Foundation for
Individual Rights in Education. December 16, 2011. Web. December 07, 2016.
<https://www.thefire.org/keeping-the-marketplace-of-ideas-open-in-schools/ >.
Former United States Supreme Court Justice William Brennan Jr. once referred to America as a
marketplace of ideas. Picturing his metaphor in a literal sense brings to mind a gigantic, WalMart-sized venue where ideas can be bought and sold in the free market. The shelves of the
marketplace are wide and varied. They are stocked with popular ideas and unpopular ones. There
is space for approval and dissent. There is room for eloquence and vulgarity. The only rule is that
there are no rules; they are all allowed to be there. While Justice Brennan used the term in 1965,
the principle behind it was born more than two hundred years earlier. The nations founding
fathers understood that in order to have a country that effectively turns ideas into policies, the
free exchange of all ideas must be protected. The First Amendment to the United States
Constitution made this philosophy the law of the land in 1791.

Champion Briefs

187

AFF: Marketplace of Ideas AC

January/February 2017

Colleges should be a marketplace of ideas.


Trama, Zachary. "Keeping The Marketplace Of Ideas Open In Schools." Foundation for
Individual Rights in Education. December 16, 2011. Web. December 07, 2016.
<https://www.thefire.org/keeping-the-marketplace-of-ideas-open-in-schools/ >.
Todays educational system is a perfect example of what can result from protecting the freedom
of speech. Allowing a diverse body of ideas is essential to maintaining the beautiful diversity that
America is known for. Schools need to produce both statisticians and artists. They need to
produce both Democrats and Republicans. They need to produce both prosecutors and public
defenders. To truly keep the freedom of speech in schools alive, it must be maintained even
when doing so seems inconvenient. Ideas that fall within the mainstream are never the ones that
put our free speech protection to the test. It is dissent and controversial thought that try how
deeply we value the freedom of speech.

Champion Briefs

188

AFF: Marketplace of Ideas AC

January/February 2017

Speech codes undermine exploratory thinking.


Trama, Zachary. "Keeping The Marketplace Of Ideas Open In Schools." Foundation for
Individual Rights in Education. December 16, 2011. Web. December 07, 2016.
<https://www.thefire.org/keeping-the-marketplace-of-ideas-open-in-schools/ >.

The University of Delaware failed its incoming classes as well. These new students werent even
given a chance to form ideas before they were bombarded with a concisely stated and often
repeated set of beliefs that they were all expected to share. The idea for this indoctrination came
straight from the schools top Residence Life directors, with an obvious goal in mind: Make
every students views the same. Proactively eliminating diverse ideas about controversial
subjects is an abhorrent practice. The University of Delaware Residence Life program sought to
systematically weed out touchy conversations before they were even had. Those who may have
had different views than the ones being dictated soon realized that they were in the minority. By
the end of orientation, the point was hammered home, and their ideas were flushed down the
spiral of silence. While the policies of Delaware and Valdosta State were different, the effect was
the same. New or unpopular ideas were crushed. Whether they were pushed out of sight or
overpowered by indoctrination, they were removed from the marketplace. Students felt less free
to explore their educational boundaries, and scholarship stayed inside the box. Exploratory
thinking was discouraged.

Champion Briefs

189

AFF: Marketplace of Ideas AC

January/February 2017

Free speech is the freedom that allows schools to function in


the first place. Entire campuses should be free speech zones.
Trama, Zachary. "Keeping The Marketplace Of Ideas Open In Schools." Foundation for
Individual Rights in Education. December 16, 2011. Web. December 07, 2016.
<https://www.thefire.org/keeping-the-marketplace-of-ideas-open-in-schools/ >.

It is imperative that the leaders of educational institutions understand that these are the exact
freedoms that allow their schools to function in the first place. When schools ignore this, they
can enact policies that send a destructive message: at this school, speech will only be free when
it is convenient. This is the absolute wrong direction for policies to move. Entire campuses
should be free speech zones. Inside the borders of campus, there should be no borders to the
freedom of speech and expression. The first day of college should not be meant to force all
students into the same school of thought. It should be exactly the opposite. Students should learn
from their orientation that their class is a diverse body of young minds and that this diversity is
invaluable.

Champion Briefs

190

AFF: Marketplace of Ideas AC

January/February 2017

Speech codes undermine freedom of dissent on campuses.


That freedom is essential to the marketplace of ideas.
Trama, Zachary. "Keeping The Marketplace Of Ideas Open In Schools." Foundation for
Individual Rights in Education. December 16, 2011. Web. December 07, 2016.
<https://www.thefire.org/keeping-the-marketplace-of-ideas-open-in-schools/ >.

At a glance, it may seem convenient for college and university leaders to eliminate the
discomfort of controversy. But this line of thinking overlooks a critical truth: America first
surfaced from under a whirlwind of controversy. Her founding fathers were the dissenters of the
day. It was their dissent that helped set in stone the values on which the nation still rests today.
Undercutting freedom to silence dissent is not only flawed as a matter of policy, but it is unAmerican. It is on the shoulders of all American educators to, as economists would say,
strengthen the marketplace of ideas by allowing as much competition as possible.

Champion Briefs

191

AFF: Marketplace of Ideas AC

January/February 2017

Freedom of dissent is essential to the dissemination of ideas.


Dichter, Dani. "Monopolizing The Marketplace Of Ideas." Foundation for Individual Rights in
Education. July 17, 2015. Web. December 07, 2016.
<https://www.thefire.org/monopolizing-the-marketplace-of-ideas/>.
Protests are protected under the First Amendment, and they can be a beneficial part of
discussions on hot button issues. The most effective way to combat speech one deems to be bad
or offensive is to counter it with more speech. This creates the marketplace of ideas, where
opinions and views are freely exchanged. The added speech can be effective in highlighting
points of disagreement or adding nuance to a complicated discussion. By voicing a dissenting
opinion, protests offer listeners the chance to hear all sides of an issue. This is particularly
valuable on college campuses where students are shaping their beliefs as they prepare for life
after graduation. Through listening to all views on an issue, each individual can come to a
reasoned conclusion on their own.

Champion Briefs

192

AFF: Marketplace of Ideas AC

January/February 2017

Colleges are a marketplace of ideas.


Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.
The federal courts long have recognized the nation's college campuses as uniquely a
"marketplace of ideas."' With their aims of cultivating curiosity, creativity, and experimentation,
colleges and universities throughout the country have broadly embraced the First Amendment.
At times, however, the free expression rights embodied in the First Amendment have clashed
with administrative attempts to restrict the speech of college students. One such conflict erupted
in 1994 at Kentucky State University (KSU or the "University"), when officials confiscated an
estimated 2000 copies of the student yearbook because of objections to the content and quality of
the publication.

Champion Briefs

193

AFF: Marketplace of Ideas AC

January/February 2017

Regulating speech on campuses would deviate from


campuses' tradition of being marketplaces of ideas.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.

Under Hazelwood, a school may regulate "school-sponsored" speech, such as student


publications, so long as the regulations "are reasonably related to legitimate pedagogical
concerns." The Court's reasoning in Hazelwood includes a public forum analysis, which federal
courts often invoke to determine the scope of First Amendment rights in contexts involving
public property." Were the Hazelwood standard applied to public colleges and universities, the
federal courts would drastically deviate from their long-standing tradition of recognizing the
nation's campuses as a "marketplace of ideas."

Champion Briefs

194

AFF: Marketplace of Ideas AC

January/February 2017

First Amendment rights shouldn't be different for colleges.


Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.

The starting point for an examination of college-level First Amendment jurisprudence is the
1972 case of Healy v. James, in which the Supreme Court considered a college president's
rejection of a student application to form a local chapter of Students for a Democratic Society at
Central Connecticut State College. In rejecting the application, the president found that "the
organization's philosophy was antithetical to the school's policies, and that the group's
independence was doubtful." In considering the dispute, the Supreme Court stated, "At the outset
we note that state colleges and universities are not enclaves immune from the sweep of the First
Amendment." The Court then explicitly rejected the notion that First Amendment rights should
be different on college campuses than they are in the community at large and thus held that the
students' free association and free expression rights were violated. The Court found the
president's concern that the organization would cause disruptions on campus unpersuasive, citing
a lack of evidence in support of the president's contention."

Champion Briefs

195

AFF: Marketplace of Ideas AC

January/February 2017

Colleges must broadly protect First Amendment rights


within the academic community.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.
One year later, the Supreme Court in Papish v. Board of Curators of the University of Missouri
reaffirmed the broad First Amendment rights it set forth in Healy, holding that the University of
Missouri could not expel a graduate student for distributing on campus a newspaper she
produced with classmates. The newspaper contained two pieces to which the university objected:
a political cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice,
and an article entitled "Motherfucker Acquitted."' Because of those pieces, the student who
distributed the newspaper was expelled pursuant to a university policy prohibiting "indecent
conduct or speech."In holding that the university violated the student's First Amendment rights,
the Court stated, "We think Healy makes it clear that the mere dissemination of ideas-no matter
how offensive to good taste-on a state university campus may not be shut off in the name alone
of 'conventions of decency.' The Court further stated that the objectionable pieces were not
legally obscene and that "the First Amendment leaves no room for the operation of a dual
standard in the academic community with respect to the content of speech."

Champion Briefs

196

AFF: Marketplace of Ideas AC

January/February 2017

College campuses are a marketplace of ideas--free speech is


vital.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.

1. Role of Free Expression in College Education Unlike primary and secondary schools, the
Court has long held, college campuses are unquestionably a "marketplace of ideas." Exposure to
many viewpoints indeed historically has been a defining characteristic of higher education. With
this mindset, the Supreme Court has held, for example, that a university cannot fire employees
pursuant to a state law for belonging to the Communist Party. To do so, the Court has stated,
would contravene the notion that the "[n]ation's future depends upon leaders trained through
wide exposure to that robust exchange of ideas." The Court focused on similar principles in
Healy v. James. In ruling that a college could not prohibit the formation of a student organization
because it opposed the organization's viewpoint, the Court emphasized that the First Amendment
applies equally to college campuses as it does to the society as a whole: [T]he precedents of this
Court leave no room for the view that, because of the acknowledged need for order, First
Amendment protections should apply with less force on college campuses than in the community
at large. Quite to the contrary, "[t]he vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools." The college classroom with its
surrounding environs is peculiarly the "marketplace of ideas," and we break no new
constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom.

Champion Briefs

197

AFF: Marketplace of Ideas AC

January/February 2017

Suppressing free speech on college campuses undermines the


creative inquiry which college campuses aspire to.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.
The Court has adhered to this view throughout its consideration of cases touching on the value of
diverse expression on college campuses. Indeed, two of the most significant recent Supreme
Court decisions addressing issues on college campuses have relied in part on the role free speech
plays in higher education. In Rosenberger v. Rector & Visitors of the University of Virginia, the
Court took a historical approach to First Amendment jurisprudence on college campuses in
holding that a university could not refuse to fund the printing of a religious newspaper produced
by students. The Court emphasized that universities began in ancient Athens and later in Europe
as "voluntary and spontaneous assemblages or concourses for students to speak and to write and
to learn." Noting that the intellectual curiosity of students remains today a central determination
of a university's success, the Court asserted that restriction of that curiosity "risks the suppression
of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its
college and university campuses."'

Champion Briefs

198

AFF: Marketplace of Ideas AC

January/February 2017

Speech restrictions are justified for primary and secondary


schools, but not for mature students in higher education.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.
In addition to the differences between the roles of free speech on college campuses and in
primary and secondary schools, significant differences exist between the students of both those
institutions. As a result of the inherent differences between younger students and college
students, the rationales underlying Hazelwoods application in the primary and secondary school
setting are largely illogical in the context of college campuses. The Supreme Court itself has
acknowledged these distinctions, most explicitly in Widmar v. Vincent, when it stated,
"University students are, of course, young adults. They are less impressionable than younger
students... Ten years earlier, the Court used similar language in a case upholding a federal law
that provided funding to church-related colleges and universities for the construction of facilities
to be used exclusively for secular educational purposes. In upholding the law, the Court noted
that while precollege students may not have the maturity to make their own decisions on religion,
"[t]here is substance to the contention that college students are less impressionable and less
susceptible to religious indoctrination. In both Fraser and Hazelwood, furthermore, the Court, in
restricting students' First Amendment rights, put significant weight on the maturity of the
students in the high schools. Indeed, in unusually judgmental language, the Court in Fraser
starkly displayed its belief that primary and secondary school students lack maturity when it
described the student who gave the objectionable speech at the school assembly as "this confused
boy." Further addressing the perceived lack of maturity of younger students, the Court stated:
The pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and
students-indeed to any mature person. By glorifying male sexuality, and in its verbal content, the
speech was acutely insulting to teenage girl students. The speech could well be seriously
damaging to its less mature audience, many of whom were only 14 years old and on the
threshold of awareness of human sexuality. Some students were reported as bewildered by the
speech and the reaction of mimicry it provoked. Thus, a central concern of the Fraser Court was
the young age and accompanying immaturity of the students exposed to the objectionable
speech.
*Ellipsis from source

Champion Briefs

199

AFF: Marketplace of Ideas AC

January/February 2017

College campuses provide an open forum appropriate for


the interchange of ideas.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.
Despite the conclusions reached in the initial Kincaid decisions, the Hazelwood analysis does not
apply appropriately to college publications. First and foremost, few courts ever have applied the
public forum doctrine to college publications. Moreover, of those few courts applying the
doctrine, even fewer, if any, ever have found a college publication to be a nonpublic forum.
Indeed, it appears that most courts simply have taken for granted that college publications are
open to the public for free expression. The court in Antonelli v. Hammond, for example, stated:
The 'University setting of college-age students being exposed to a wide range of intellectual
experience creates a relatively mature marketplace for the interchange of ideas so that the free
speech clause of the First Amendment with its underlying assumption that there is positive social
value in an open forum seems particularly appropriate.

Champion Briefs

200

AFF: Marketplace of Ideas AC

January/February 2017

Restricting free speech on college campuses produces a


chilling effect on academic freedom.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.

Were the federal courts to restrict those First Amendment rights on college campuses, nothing
short of a chilling effect on diverse expression and academic freedom would result. The Student
Press Law Center already has established that the incidences of censorship in the nation's
secondary schools have increased significantly since Hazelwood. For instance, between 1988,
the year of the Supreme Court's Hazelwood decision, and the end of 1996, the number of
inquiries to the Student Press Law Center from public school student journalists and their
advisors rose 163 %. Extending Hazelwood to college campuses would have the same effect.
Moreover, the ever expanding application of Hazelwood in secondary schools could also occur
on college campuses, resulting in regulation not only of college newspapers and yearbooks, but
also potentially of student theatrical productions, college libraries and even faculty expression.

Champion Briefs

201

AFF: Marketplace of Ideas AC

January/February 2017

Speech restrictions would have a chilling effect--that


undermines the marketplace of ideas.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.
Free speech regulations like those attempted in Rosenberger thus undoubtedly would have a
chilling effect on college campuses under a Hazelwood standard. Indeed, the notion of a
"marketplace of ideas" on the nation's college campuses likely would be no more. IV.
CONCLUSION: LIKELIHOOD OF HAZELWOOD'S EXTENSION The question remains
whether the Supreme Court will extend Hazelwood to universities. Support exists for both sides
of the proposition. On one hand, such an extension is not all that implausible. In the oft-cited
footnote seven of its decision, the Hazelwood Court itself acknowledged the possibility of
extending its holding to college speech: "We need not now decide whether the same degree of
deference is appropriate with respect to school-sponsored expressive activities at the college and
university level. Had the Court automatically concluded that such an extension were
inappropriate, it would be logical to assume that the Court would not have included footnote
seven in its opinion. Instead, the inclusion of footnote seven seems to suggest a possible
extension to college speech.

Champion Briefs

202

AFF: Marketplace of Ideas AC

January/February 2017

The only way colleges and universities will maintain their


status as marketplaces of ideas is if they don't restrict
constitutionally protected speech.
Fiore, Mark. "Trampling The Marketplace Of Ideas: The Case Against Extending Hazelwood
To College Campuses." University of Pennsylvania Law Review, vol. 150. 2002. Web.
December 07, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3284&context=penn_law_
review>.

Nonetheless, in order to apply Hazelwood to speech on college campuses, the Supreme Court
ostensibly would have to reject significant precedent. Specifically, as discussed in Part III, the
Court would have to reconcile the vastly different approaches it has taken toward free expression
at the college level as opposed to the secondary school levels. At the same time, the Court would
have to address the fundamental differences between college students and secondary school
students. Finally, the Court would have to recognize the chilling effect the extension of
Hazelwood could have on the "marketplace of ideas" philosophy currently embedded in the
nation's college campuses. Whether the Supreme Court, or any other federal court, would take
those steps remains an open question. Perhaps, the Court ultimately will answer Hazelwoods
footnote seven in the negative, putting a definitive end to such concern. Only then would
colleges and universities maintain their status as the country's "marketplace of ideas."

Champion Briefs

203

AFF: Marketplace of Ideas AC

January/February 2017

Free speech is grounded in the marketplace of ideas.


Morrissey, Anna. "Free Speech In The Quad: Why First Amendment Oppression Is Not The Path
To Racial Justice." Education Law and Policy. May 03, 2016. Web. December 07, 2016.
<http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2016/Morrissey.pdf
>.
Congress shall make no law abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress of grievances.
The touchstone of the First Amendment, and any of free society, is freedom of expression and
the most important aspect of free speech is being able to express what may be controversial or
unpopular. I disapprove of what you say, but I will defend to the death your right to say it. Free
speech allows for individual freedom of mind and promotes a marketplace of ideas, while
placing an important check on those in power. This freedom however, is not one-sided. Speech
is powerful. It can stir people to action, move them to tears of both joy and sorrow, and inflict
great pain. Therefore, each time a speaker is someone with whom an individual disagrees, the
value placed on free speech is tested most.
*Ellipsis from source

Champion Briefs

204

AFF: Marketplace of Ideas AC

January/February 2017

Free speech restrictions undermine the marketplace of ideas.


Morrissey, Anna. "Free Speech In The Quad: Why First Amendment Oppression Is Not The Path
To Racial Justice." Education Law and Policy. May 03, 2016. Web. December 07, 2016.
<http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2016/Morrissey.pdf
>.
Perhaps then, it is no surprise the university free speech pendulum has swung in favor of speech
restrictions Millennials make up most of the university population and are present to apply
greatest pressure on the administration for change. In response to these campus pressures, many
universities have adopted codes and policies that prohibit offensive and outrageous
speech.37 On the surface such measures may sound appealing. However, who gets to decide
what speech is offensive enough or outrageous enough? 38 More vexing, how can a
university that limits speech educate students from different backgrounds to effectively handle
differences in a marketplace of ideas?39 Therefore, how can First Amendment oppression
really be the right path to social justice?

Champion Briefs

205

AFF: Marketplace of Ideas AC

January/February 2017

Curtailing freedom of speech on college campuses produces


a dangerous precedent.
Morrissey, Anna. "Free Speech In The Quad: Why First Amendment Oppression Is Not The Path
To Racial Justice." Education Law and Policy. May 03, 2016. Web. December 07, 2016.
<http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2016/Morrissey.pdf
>.
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and
inflict great pain... we cannot react to that pain by punishing the speaker. As a Nation we have
chosen a different courseto protect even hurtful speech on public issues to ensure that we do
not stifle public debate. These student activists across the country reflect First Amendment
values and traditions to their core. For that, they deserve applause. These activists have been
organizing politically, speaking out, holding rallies, and using the First Amendment to stand up,
communicate and demand equal justice. But the end they seek runs contrary to their purpose.
Curtailing freedom of speech in any manner would place limits on those that challenge the status
quo a dangerous precedent for any free society.
*Ellipsis from source

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Free speech is indivisible--if anyone is denied it, all of us are.


Morrissey, Anna. "Free Speech In The Quad: Why First Amendment Oppression Is Not The Path
To Racial Justice." Education Law and Policy. May 03, 2016. Web. December 07, 2016.
<http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2016/Morrissey.pdf
>.
Academic and education freedom are bedrocks of a free society. Universities should therefore
impose policies that encourage students to become productive members of society policies that,
as Ms. Christakis observedwould be conducive to the civil dialogue and open inquiry
required to solve our urgent societal problems. IV. CONCLUSION Speech that severely
offends an individuals morality or is hostile to an individuals way of life warrants the same
constitutional protection as other speech because the right of free speech is indivisible: When one
of us is denied this right, all of us are denied. Justice Harlan recognized that in interpreting the
Constitution, the Supreme Court must strike a balance between liberty of the individual and
the demands of organized society.

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A2 Aff Free Speech Conceptions: The aff relies on a valueneutral conception of free speech--this is flawed.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
In this graduation season, college students across the country are making final preparations to
enter the real world. For years, theyve been told colleges are heterotopic spaces where free
speech is dead and students are coddled, whereas the real world is a massive free-speech zone
where they must fend for themselves. The latest such scolding comes from Michael Bloomberg
and Charles Koch in a Wall Street Journal op-ed, Why Free Speech Matters on Campus. This
unlikely pair offer a number of views with which we should all agree, including, The purpose of
a college education isnt to reaffirm students beliefs, it is to challenge, expand and refine them,
and, Through open inquiry and a respectful exchange of ideas, students can discover new ways
to help others improve their lives. But Bloomberg and Koch arent simply interested in free
speech in the way these eloquent, brochure-ready statements suggest. Rather, free speech is a
way of framing their ideological intervention as if its bipartisan and value-neutral, which it isnt.

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A2 Marketplace of Ideas AC: Private influences--like the


Koch brothers--undermine the marketplace of ideas on
college campuses.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
As any free-speech advocate will tell you, the boundaries we set for a debate can be as influential
as the arguments made and evidence presented within those boundaries. Its just that not all freespeech advocates are intellectually honest about the speech boundaries theyre setting in the act
itself of advocating for free speech. To be more specific, Koch and Bloomberg undoubtedly care
about free expression in the abstract; but when they take issue with safe spaces and trigger
warnings, they do so with their own heavy investments in what people research, learn, and
discuss in college. Kochs own model of higher education philanthropy is fundamentally about
creating safe spaces for very particular forms of free-market ideology. As Dave Levinthal
reported last year in The Atlantic, Koch education funding sometimes comes with certain
strings attached.

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A2 Marketplace of Ideas AC: In a marketplace, there are


inferior and superior products. Similarly, colleges should
assign different values to speech.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
The curious consequence of this type of free-speech advocacy is that it actually betrays the
fundamental virtues of a free marketplace of ideas. As Bloomberg, Koch, and countless other
free-speech advocates would have it, the marketplace of ideas is actually more like a
communist scenario in which all speech unitsracist remarks and peer-reviewed studieshave
equal value, such that minimizing certain kinds of speech as bigoted or inferior is tantamount to
censorship. Ironically, for Bloomberg and Koch, consumer marketplaces are free to ascribe value
to inferior and superior products, but once colleges start assigning different values to speech, its
suddenly a threat to open minds and rational discourse.

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A2 Marketplace of Ideas AC: Allowing bigoted speech


doesn't contribute to our enlightenment in a "marketplace of
ideas.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
For example, Bloomberg and Koch correctly note that many ideas that the majority of
Americans hold dearincluding that all people should have equal rights, women deserve the
right to vote, and gays and lesbians deserve to marry whom they choosewere once unpopular
minority views that many found offensive. But do Bloomberg and Koch really imagine that,
like those who fight for gender and racial equality, those wearing blackface Halloween costumes
to parties or vandalizing campus facilities with swastikas scrawled in feces or arguing that
women would be better off if financially dependent on men are on the cusp of social
enlightenment? Are studentsparticularly marginalized studentsbeing irrational when they
protest bigoted speech and actions, or advocate for their own safety on campuses rife with
violence? Should colleges give their resources and platforms to low-value speakers like Suzanne
Venker and John Derbyshire, even though students and their families pay us tens of thousands a
year to guide them rigorously through the highest quality material on offer?

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A2 Marketplace of Ideas AC: The "marketplace of ideas" is


a cheap excuse for bigotry.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
For the past few years, free speech has become a shortcut for shifting the frame of argument
away from the content of bigoted speech itself and toward broader discussions of the value of
free expressiona value we all share. The strategic advantage is obvious: Its much easier to
defend the right to bigotry with grandiose statements about freedom of expression than it is to
defend the substance of what speakers have to say. Thus, when a campus is embroiled in protests
(speech) over bigotry or disinvited speakers, the real censorship happens by ripping the debate
away from the substance of marginalized students concerns and focusing instead on free
speechthat is, on the sensitivities of those who would rather not have to think about their
capacity to hurt or offend. But an intellectually honest free-speech advocate wouldnt cry
censorship; theyd instead address the substance of the speech being censored or marginalized,
and argue for why that speech deserves to be heard on a college campus in the first place.

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A2 Marketplace of Ideas AC:: Private actors like the Koch


brothers have far more stifling influence on open dialogue
than any college administrator does.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
However, thats the kind of open debate that Bloomberg and Koch dont want to have, because
that would mean forcing them to defend bigoted speech on its own merits. It would also mean
acknowledging the threat to free expression on college campuses thats posed by extraordinarily
wealthy donors who attach ideological conditions to their donations, particularly as the landscape
for state and federal higher education funding continues to shift. What does it mean for academic
freedom or scientific objectivity for someone who holds the Charles Koch Chair of Economics?
What does it mean when market valuation trumps moral or ethical inquiry? We need to be clear,
then, that it means next to nothing to argue broadly for free speech on college campuses. We
all want that; and for the most part, we have it. If Bloomberg and Koch really want robust
dialogue with their fellow citizens, they could start by acknowledging that they wield more
stifling influence, and on a greater scale, than any provoked student, radical professor, or heavyhanded administrator does.

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Colleges must be a marketplace of ideas--without free and


open inquiry, a university ceases to be a university.
Bloomberg, Michael. "Why Free Speech Matters On Campus." The Wall Street Journal. May 12,
2016. Web. December 07, 2016. <http://www.wsj.com/articles/why-free-speech-matterson-campus-1463093280>.
Administrators and faculty must do more to encourage a marketplace of ideas where individuals
need not fear reprisal, harassment or intimidation for airing controversial opinions. These
members of campus leadership would be wise to look at the University of Chicagos Statement
on Principles of Free Expression, which paraphrases the wise words of the universitys former
president, Robert M. Hutchins: without a vibrant commitment to free and open inquiry, a
university ceases to be a university. The continued march of justice and progress depends on
free speech, open minds and rational discourse. Colleges and universitiesand those who hold
their degreeshave helped lead the way for most of this nations history. The well-being of
future generations of Americans depends on the preservation of that great legacy.

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Campus speech restrictions undermine America's civic life


writ large.
Bloomberg, Michael. "Why Free Speech Matters On Campus." The Wall Street Journal. May 12,
2016. Web. December 07, 2016. <http://www.wsj.com/articles/why-free-speech-matterson-campus-1463093280>.
We fear that such dialogue is now disappearing on college campuses. As it fades, it will make
material and social progress that much harder to achieve. It will also create graduates who are
unwilling to tolerate differing opinionsa crisis for a free society. An unwillingness to listen to
those with differing opinions is already a serious problem in Americas civic discourse. Unless
colleges reverse course, that problem will worsen in the years ahead, with profoundly negative
consequences.

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Progress depends on free and open dialogue in a


marketplace of ideas.
Bloomberg, Michael. "Why Free Speech Matters On Campus." The Wall Street Journal. May 12,
2016. Web. December 07, 2016. <http://www.wsj.com/articles/why-free-speech-matterson-campus-1463093280>.
Whether in economics, morality, politics or any other realm of study, progress has always
depended upon human beings having the courage to challenge prevailing traditions and beliefs.
Many ideas that the majority of Americans now hold dearincluding that all people should have
equal rights, women deserve the right to vote, and gays and lesbians should be free to marry
whom they choosewere once unpopular minority views that many found offensive. They are
now widely accepted because people were free to engage in a robust dialogue with their fellow
citizens.

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College speech restrictions threaten the fabric of a free and


democratic society.
Bloomberg, Michael. "Why Free Speech Matters On Campus." The Wall Street Journal. May 12,
2016. Web. December 07, 2016. <http://www.wsj.com/articles/why-free-speech-matterson-campus-1463093280>.
We believe that this new dynamic, which is doing a terrible disservice to students, threatens not
only the future of higher education, but also the very fabric of a free and democratic society. The
purpose of a college education isnt to reaffirm students beliefs, it is to challenge, expand and
refine themand to send students into the world with minds that are open and questioning, not
closed and self-righteous. This helps young people discover their talents and prepare them for
citizenship in a diverse, pluralistic democratic society. American society is not always a
comfortable place to be; the college campus shouldnt be, either. Education is also supposed to
give students the tools they need to contribute to human progress. Through open inquiry and a
respectful exchange of ideas, students can discover new ways to help others improve their lives.

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Colleges shouldn't shield students from uncomfortable ideas


or offensive things. Otherwise freedom of expression is
seriously undermined.
Bloomberg, Michael. "Why Free Speech Matters On Campus." The Wall Street Journal. May 12,
2016. Web. December 07, 2016. <http://www.wsj.com/articles/why-free-speech-matterson-campus-1463093280>.
Colleges are increasingly shielding students from any idea that could cause discomfort or
offense. Yet without the freedom to offend, freedom of expression, as author Salman Rushdie
once observed, ceases to exist. And as Frederick Douglass said in 1860: To suppress free
speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.
When a professor last year decided to write online about the trend toward intolerance on
campuses, he did so under a pseudonym out of fear of a backlash. The student-teacher
dynamic, he wrote, has been reenvisioned along a line thats simultaneously consumerist and
hyper-protective, giving each and every student the ability to claim Grievous Harm in nearly any
circumstance, after any affront.

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Neoliberalism/Wendy Brown AC
Arguments that focus on neoliberalisms creeping influence into liberatory rhetoric and

strategies critique the individualizing effects, divisiveness, and the entrapment of identities
within this framework, frustrating calls for freedom. The Halberstam evidence in this section of
the brief speaks to the individualizing effects of a facile understanding of trauma, creating
division within the long fought for coalitional politics of the Left. Further, Wendy Brown argues
that such restrictions on speech codify subordinated identities within the laws, confirming their
legal status. The final component of these sets of arguments arises from the Judith Butler article
cited in this section. Such approaches ignore the unique judiciary violence enacted through
interpretations. The combination of these three arguments forms a potential Left position against
restrictions on free speech. The possibilities for liberation actually reside within this discourse,
through the process of resignification of terms that are injurious. The primary example used in
this body of the literature is the reclamation of the term queer in the context of Queer Theory.
The framework that could be used in conjunction with these arguments takes a couple of
forms. First, you could draw from Girouxs theory of education and politics regarding the despair
of neoliberalism for critical pedagogy. Secondly, you could draw from a number of quasi-ethics
from post-modern authors including Butler, Derrida, and recent interpretations of Levinas.
Finally, you could potentially claim that the proliferation of neoliberal ideology has drastic
consequences, appealing to a quasi-consequentialist framework. Regardless, this position
provides a lot of clash between possible negative positions that rely on some forms of Critical
Race Theory and Feminism.

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Focus on language and speech as a space for reducing modes


of violence destroys hard fought for coalitional politics.
Halberstam, Jack. ""You Are Triggering Me! The Neo-liberal Rhetoric Of Harm, Danger, And
Trauma." Bully Bloggers. July 05, 2014. Web. December 03, 2016.
<https://bullybloggers.wordpress.com/2014/07/05/you-are-triggering-me-the-neo-liberalrhetoric-of-harm-danger-and-trauma/>.
At this point, we should recall the four Yorkshire men skit from Monty Python where the four
old friends reminisce about their deprived childhoods one says we used to live in a tiny old
tumbledown house the next counters with house!? You were lucky to live in a house. We
used to live in a room And the third jumps in with: room? You were lucky to have a room,
we used to have to live in a corridor. The fourth now completes the cycle: A corridor!
We dreamed of living in a corridor! These hardship competitions, but without the humor, are
set pieces among the triggered generation and indeed, I rarely go to a conference, festival or
gathering anymore without a protest erupting about a mode of representation that triggered
someone somewhere. And as people call each other out to a chorus of finger snapping, we
seem to be rapidly losing all sense of perspective and instead of building alliances, we are
dismantling hard fought for coalitions. Much of the recent discourse of offense and harm has
focused on language, slang and naming. For example, controversies erupted in the last few
months over the name of a longstanding nightclub in San Francisco: Trannyshack, and
arguments ensued about whether the word tranny should ever be used. These debates led some
people to distraction, and legendary queer performer, Justin Vivian Bond, posted an open letter
on her Facebook page telling readers and fans in no uncertain terms that she is angered by this
trifling bullshit. Bond reminded readers that many people are delighted to be trannies and not
delighted to be shamed into silence by the word police. Bond and others have also referred to
the queer custom of re-appropriating terms of abuse and turning them into affectionate terms of
endearment. When we obliterate terms like tranny in the quest for respectability and
assimilation, we actually feed back into the very ideologies that produce the homo and trans
phobia in the first place! In The Life of Brian, Brian finally refuses to participate in the antiSemitism that causes his mother to call him a roman. In a brave coming out speech, he says:
Im not a roman mum, Im a kike, a yid, a heebie, a hook-nose, Im kosher mum, Im a Red Sea
pedestrian, and proud of it! And now for something completely differentThe controversy
about the term tranny is not a singular occurrence; such tussles have become a rather
predictable and regular part of all kinds of conferences and meetings. Indeed, it is becoming
difficult to speak, to perform, to offer up work nowadays without someone, somewhere claiming
to feel hurt, or re-traumatized by a cultural event, a painting, a play, a speech, a casual use of
slang, a characterization, a caricature and so on whether or not the damaging
speech/characterization occurs within a complex aesthetic work. At one conference, a play that
foregrounded the mutilation of the female body in the 17th century was cast as trans-phobic and
became the occasion for multiple public meetings to discuss the damage it wreaked upon trans
people present at the performance. Another piece at this performance conference that featured a

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Halberstam, Jack. ""You Are Triggering Me! The Neo-liberal Rhetoric Of Harm, Danger, And
Trauma." Bully Bloggers. July 05, 2014. Web. December 03, 2016.
<https://bullybloggers.wordpress.com/2014/07/05/you-are-triggering-me-the-neo-liberalrhetoric-of-harm-danger-and-trauma/>.
fortune teller character was accused of orientalist stereotyping. At another event I attended
that focused on queer masculinities, the organizers were accused of marginalizing queer
femininities. And a class I was teaching recently featured a young person who reported feeling
worried about potentially triggering a transgender student by using incorrect pronouns in
relation to a third student who did not seem bothered by it! Another student told me recently that
she had been triggered in a class on colonialism by the showing of The Battle of Algiers. In
many of these cases offended groups demand apologies, and promises are made that future
enactments of this or that theater piece will cut out the offensive parts; or, as in the case of
Trannyshack, the name of the club was changed. As reductive as such responses to aesthetic
and academic material have become, so have definitions of trauma been over-simplified within
these contexts. There are complex discourses on trauma readily available as a consequence of
decades of work on memory, political violence and abuse. This work has offered us multiple
theories of the ways in which a charged memory of pain, abuse, torture or imprisonment can be
reignited by situations or associations that cause long buried memories to flood back into the
body with unpredictable results. But all of this work, by Shoshana Felman Macarena GomezBarris, Saidiya Hartman, Cathy Caruth, Ann Cvetkovich, Marianne Hirsch and others, has been
pushed aside in the recent wave of the politics of the aggrieved.

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Focus on individualized notions of pain and aggrievement


through forms of representation recreates a form of
neoliberalism, masking social inequity.
Halberstam, Jack. ""You Are Triggering Me! The Neo-liberal Rhetoric Of Harm, Danger, And
Trauma." Bully Bloggers. July 05, 2014. Web. December 03, 2016.
<https://bullybloggers.wordpress.com/2014/07/05/you-are-triggering-me-the-neo-liberalrhetoric-of-harm-danger-and-trauma/>.
Claims about being triggered work off literalist notions of emotional pain and cast traumatic
events as barely buried hurt that can easily resurface in relation to any kind of representation or
association that resembles or even merely represents the theme of the original painful experience.
And so, while in the past, we turned to Freuds mystic writing pad to think of memory as a
palimpsest, burying material under layers of inscription, now we see a memory as a live wire
sitting in the psyche waiting for a spark. Where once we saw traumatic recall as a set of
enigmatic symptoms moving through the body, now people reduce the resurfacing of a painful
memory to the catch all term of trigger, imagining that emotional pain is somehow similar to a
pulled muscle as something that hurts whenever it is deployed, and as an injury that requires
protection. Fifteen to twenty years ago, books like Wendy Browns States of Injury(1995) and
Anna Chengs The Melancholy of Race: Psychoanalysis, Assimilation and Hidden Grief (2001)
asked readers to think about how grievances become grief, how politics comes to demand injury
and how a neoliberal rhetoric of individual pain obscures the violent sources of social inequity.
But, newer generations of queers seem only to have heard part of this story and instead of
recognizing that neoliberalism precisely goes to work by psychologizing political difference,
individualizing structural exclusions and mystifying political change, some recent activists seem
to have equated social activism with descriptive statements about individual harm and psychic
pain. Let me be clear saying that you feel harmed by another queer persons use of a reclaimed
word like tranny and organizing against the use of that word is NOT social activism. It is
censorship. In a post-affirmative action society, where even recent histories of political violence
like slavery and lynching are cast as a distant and irrelevant past, all claims to hardship have
been cast as equal; and some students, accustomed to trotting out stories of painful events in their
childhoods (dead pets/parrots, a bad injury in sports) in college applications and other such
venues, have come to think of themselves as communities of naked, shivering, quaking little
selves too vulnerable to take a joke, too damaged to make one. In queer communities, some
people are now committed to an It Gets Better version of consciousness-raising within which
suicidal, depressed and bullied young gays and lesbians struggle like emperor penguins in a
blighted arctic landscape to make it through the winter of childhood. With the help of friendly
adults, therapy, queer youth groups and national campaigns, these same youth internalize
narratives of damage that they themselves may or may not have actually experienced. Queer
youth groups in particular install a narrative of trauma and encourage LGBT youth to see
themselves as endangered and precarious whether or not they actually feel that way, whether
or not coming out as LGB or T actually resulted in abuse! And then, once they age out of their

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Halberstam, Jack. ""You Are Triggering Me! The Neo-liberal Rhetoric Of Harm, Danger, And
Trauma." Bully Bloggers. July 05, 2014. Web. December 03, 2016.
<https://bullybloggers.wordpress.com/2014/07/05/you-are-triggering-me-the-neo-liberalrhetoric-of-harm-danger-and-trauma/>.
youth groups, those same LGBT youth become hypersensitive to all signs and evidence of the
abuse about which they have learned. What does it mean when younger people who are
benefitting from several generations now of queer social activism by people in their 40s and 50s
(who in their childhoods had no recourse to anti-bullying campaigns or social services or
multiple representations of other queer people building lives) feel abused, traumatized,
abandoned, misrecognized, beaten, bashed and damaged? These younger folks, with their gaystraight alliances, their supportive parents and their new right to marry regularly issue calls for
safe space. However, as Christina Hanhardts Lambda Literary award winning book, Safe
Space: Neighborhood History and the Politics of Violence, shows, the safe space agenda has
worked in tandem with urban initiatives to increase the policing of poor neighborhoods and the
gentrification of others. Safe Space: Gay Neighborhood History and the Politics of
Violence traces the development of LGBT politics in the US from 1965-2005 and explains how
LGBT activism was transformed from a multi-racial coalitional grassroots movement with strong
ties to anti-poverty groups and anti-racism organizations to a mainstream, anti-violence
movement with aspirations for state recognition. And, as LGBT communities make safety into
a top priority (and that during an era of militaristic investment in security regimes) and ground
their quest for safety in competitive narratives about trauma, the fight against aggressive new
forms of exploitation, global capitalism and corrupt political systems falls by the way side.

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A2 Butler Resistance through Resignification: Butler offers


no blueprint for resistance, making her strategy impossible
to guide liberatory action.
Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
In contrast to the social, political, and legal changes advocated by Langton, MacKinnon, and
Matsuda, Butler offers a far more dubious plan for resistance. In a recent review of a number of
Butler's books, Martha Nussbaum argues that this failure to provide an account of resistance is
one of Butler's most significant problems. According to Nussbaum, even if we grant Butler's
claim that the ubiquitousness of the structure of gender should be resisted through "subversive
and parodic acts," two important questions remain: "What would the acts of resistance be like,
and what would we expect them to accomplish?"' Resistance, in terms of responding to harmful
speech, seems to involve restaging and resignifying certain words that otherwise would be
injurious. But how are we to know which words should be resig-nified in this manner? Butler
fails to offer any guidance about how to distin-guish speech that is oppressive (and that
reinforces social hierarchy) from speech that is offensive or upsetting to an individual for some
other reason. Nussbaum points out that unlike other feminists who have relied on "ideas such as
non-hierarchy, equality, dignity, autonomy ... to indicate a direction for actual politics,' Butler
does not explain what is supposed to guide one's decisions about what to resist. In the absence of
any discussion of the goals of resistanceor of politics, more generallyit is hard to know what
would count as desirable change and what would reinforce the status quo. As Nussbaum notes,
Butler seems to think that we need to "wait to see what the political struggle itself throws up,
rather than prescribe in advance to its participants."' On this issue, Butler's position echoes that
of another post-structuralist theorist, Wendy Brown. According to Brown, politics is about
struggle, and political change proceeds in the absence of normative conceptions.' Rather than
defend this view of politics, however, Butler simply seems to assume it, and she proceeds under
the assumption that employing any normative critique would inevitably reinforce current social
norms. Not only does Butler fail to offer any guidance about what should be resisted, she also
does not say much about the process of resistancehow it happens, what brings it about, etc. At
times she writes as if she need not describe this process because resignification is something that
just happens given the inevitable "gaps" between the intention of the speaker and the effects that
speech has on its recipient. As I noted above, Butler rejects the view (which she wrongly
attributes to Langton, MacKinnon, and Matsuda) that hate speech always works. This rejection
seems to be at least partly based on Butler's belief that the transformative possibilities of
languageand of society more generallylie in the inevitable failures of language to do what
the speaker intends. Butler explains, "I wish to question for the moment the pre-sumption that
hate speech always works, not to minimize the pain that is suffered as a consequence of hate
speech, but to leave open the possibility that its failure is the condition of a critical response."' At

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Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
times Butler writes about this critical response as a mere possibility, as something that might
come about from the speech act's failure, and at other times she suggests that there is a much
stronger correlation between hate speech and this sort of agency: "hate speech does not destroy
the agency required for a critical response... In the place of state-sponsored censorship, a social
and cultural struggle of language takes place in which agency is derived from injury, and injury
coun-tered through that very derivation."' Unfortunately, Butler fails to explain when, why, and
how such "agency" can be "derived" from the very injury itself. Is Butler suggesting that the
injury prompts the individual victim to take action and resignify speech or is she referring to a
process of resignifi-cation that just occurs on its own?
*Ellipsis from source

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A2 Butler Injury Leads to Resignification: Resignification is


not a result of injury, but different radical social and
political movements.
Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
One way to determine how successful an attempt to resignify language will beand one way to
better understand this process of resistancemight be to examine social, historical, and political
movements. In her view that hate speech can be easily resignified, Butler seems to underestimate
the role that such movements play in this process. Unless certain social, cultural, and political
changes have taken placeor are in the process of occurringthe efforts of any single
individual to resignify hate speech will not be very successful. For instance, fifty years ago, if
someone were the recipient of a homophobic speech act that consisted of a word like "queer" or
"dyke," the individual recipient probably would not have been able to simply restage or resignify
that word and make it mean something else. And yet, in current times, such words are often used
within gay and lesbian communities in a positive and reaffirming manner. I would argue that the
meanings (and connotations) of these words have shifted primarily because of the efforts of
lesbian, gay, bisexual, and transgendered activists who have reclaimed these words for
themselves and have caused their meanings to evolve. But such changes do not happen suddenly,
by the single response of the recipient of an act of hate speech. Rather, they occur over time,
through political and col-lective acts of resistance that increase the power of oppressed groups to
define themselves publicly in more positive ways. Social movements that challenge oppression
by demanding freedom, equality, and liberation make possible the changes that have occurred.'
Thus, contrary to Butler's claim, it is not the injury of hate speech from which agencyor the
possibility of changederives.

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Positing some aspect of a liberatory discourse as an essential


truth reifies the regulatory structure of the law to create
subordination.
Brown, Wendy. "In The Folds Of Our Own Discourse: The Pleasures And Freedoms Of
Silence." The University of Chicago Law School Roundtable: Vol. 3: Iss. 1, Article 8.
January 01, 1996. Web. December 04, 2016.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1381&context=roundt
able>.
Here, Foucault's concern is less with disrupting the conventional modernist equation of power
with speech on one side, and oppression with silence on the other, than with the ways in which
insurrectionary discourse borne of exclusion and marginalization can be colonized by that which
produced it much as counter-cultural fashion is routinely commodified by the corporate textile
industry. While "disqualified" discourses are an effect of domination, they nevertheless
potentially function as oppositional when they are deployed by those who inhabit them.
However, when "annexed" by those "unitary" discourses which they ostensibly oppose, they
become a particularly potent source of regulation, carrying as they do intimate and detailed
knowledge of their subjects. Thus, Foucault's worry would appear to adhere not simply to the
study of but to the overt political mobilization, of oppositional discourses. Consider the way in
which the discourse of multiculturalism has been annexed by mainstream institutions to generate
new modalities of essentialized racial discourse; how "pre-menstrual syndrome" has been
rendered a debilitating disease in medical and legal discourses;'7 how "battered women's
syndrome" has been deployed in the courtroom to defend women who strike back at their
assailants by casting them as sub-rational, egoless victims of male violence; 8 or how some
women's response to some pornography was generalized by the Meese Commission on
pornography as the violence done to all women by all pornography. 9 Consider, more generally,
attempts at codifying feminist discourses of women's experience in the unitary and universal
discourse of the law. What happens when legal universalism's silence about women, when its
failure to recognize or remedy the material of women's subordination, is remedied with
discourses specifying women's experience and codifying the category of women through this
specification? In pursuing this question, I will focus briefly on Catharine MacKinnon's work, but
the questions I am raising about this kind of feminist legal reform are not limited to her work.2 "
MacKinnon expressly aims to write "women's experience into law," but as so many other
feminists have remarked, this begs the question of which women's experience(s), drawn from
which historical moments, culture, race, and class strata." Indeed, what does it mean to write
historically and culturally circumscribed experience into an ahistorical discourse, the universalist
discourse of law? Is it possible to do this without rendering "experience" as ontology,
"perspective" as Truth, and without encoding this ontology and this Truth in law as the basis of
women's rights? What if, for example, the identity of women as keyed to sexual violation is an
expressly late twentieth century and white middle-class construction of femininity, consequent to

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Brown, Wendy. "In The Folds Of Our Own Discourse: The Pleasures And Freedoms Of
Silence." The University of Chicago Law School Roundtable: Vol. 3: Iss. 1, Article 8.
January 01, 1996. Web. December 04, 2016.
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1381&context=roundt
able>.
a radical deprivatization of sexuality on the one side, and the erosion of other elements of
compulsory heterosexuality-such as a severely gendered division of social labor-on the other?
Moreover, does a definition of women as sexual subordination, and the encoding of this
definition in law, work to liberate women from sexual subordination, or does it, paradoxically,
legally reinscribe femaleness as sexual violability? If the law produces the subjects it claims to
protect or emancipate, how might installation of women's experience as "sexual violation" in the
law reiterate rather than repeal this identity? And might this installation be particularly
unemancipatory for women whose lived experience is not that of sexual subordination to men
but, for example, that of sexual outlaw? These questions suggest that in legally codifying a
fragment of an insurrectionary discourse as a timeless truth, interpellating women as unified in
their victimization, and casting the "free speech" of men as that which "silences" and thus
subordinates women, MacKinnon not only opposes bourgeois liberty to substantive equality, but
potentially intensifies the regulation of gender and sexuality in the law, abetting rather than
contesting the production of gender identity as sexual. In short, as a regulatory fiction of a
particular identity is deployed to displace the hegemonic fiction of universal personhood, the
discourse of rights converges insidiously with the discourse of disciplinarity to produce a
spectacularly potent mode of juridical-regulatory domination.

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Hate speech suppression strategies obscure responsibility,


focusing on individual psychological states instead of its ties
to a specific history as a performative utterance.
Bailey, Courtney. "Coming Out As Homophobic: Isaiah Washington And The Grey's Anatomy
Scandal." Communication and Critical/Cultural Studies, 8:1, 1-21. February 24, 2011.
Web. December 04, 2016. <http://dx.doi.org/10.1080/14791420.2010.541926>.
These assumptions became apparent, for instance, during an interview between Paula Zahn and
Joe Solomonese, the President of the Human Rights Campaign (HRC), one of the largest
mainstream LGBT rights organizations. Solomonese argued that focusing on the word faggot
itself held less importance than getting to the motivation behind its usage.31 Although
Washington did apologize for using the slur, he never quite satisfied Solomoneses call. Never
once did Washington admit to being homophobic; in fact, he explicitly denied it, claiming that he
used the word faggot to mean weak or not deserving of respect, rather than to refer to
sexual orientation. Although he did explain his motivation, he did not offer the only motive that
would be accepted as true, thereby seeming to evade the real issue of internal bigotry. He refused
to satisfy the confessional-therapeutic belief that a homophobic slur must arise from a
homophobic self and that the self is more important and real than the word. Since the self is
understood as the cause and the word is understood as the effect, a truly homophobic self will
express itself in homophobic language, and by a kind of circular logic, homophobic language
therefore becomes proof of a truly homophobic self. If a persons choice of words reveals the
bigotry within him or her, then bigotry is that persons responsibility to fix, mainly by confessing
his or her true feelings, expressing his or her remorse, and cleansing him- or herself of prejudice.
Confessional-therapeutic logic operates on the assumption that, since language merely reflects
individual subjectivity, it can be read as a sign of ones true self and of ones ability to manage
that self properly. Thus, the transgression in instances of hate speech does not simply involve the
revelation of bigotry, but also the revelation of ones inability to discipline the self and to
manage risk, as required by neoliberal notions of citizenship. Taking a performative view of
language, in contrast, emphasizes that hate speech works through citationality or repetition of
prior utterances, drawing on the conventional meanings of language. It therefore separates
questions of responsibility from questions of origination. Butler argues that the subject who
speaks hate speech is clearly responsible for such speech, but the subject is rarely the originator
of that speech.32 Responsibility lies with both the speaker and the history (s)he invokes with
his/her speech, implying that we need to consider the role of both the individual and the larger
culture in the production and circulation of hate speech. The meaning and force of language
cannot be reduced to the speakers intentions, an idea that directly contradicts the neoliberal
insistence on self-control and personal responsibility. Thus, a confessional-therapeutic mindset
ignores the cultural and historical dimensions of language and locates responsibility solely within
the individual subject. Washingtons refusal to play into this logic has the potential to raise the
question of why faggot carries connotations of weak or not deserving of respect in the
first place. Such associations make up the words historicity, the residue of repeated usages that

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Bailey, Courtney. "Coming Out As Homophobic: Isaiah Washington And The Grey's Anatomy
Scandal." Communication and Critical/Cultural Studies, 8:1, 1-21. February 24, 2011.
Web. December 04, 2016. <http://dx.doi.org/10.1080/14791420.2010.541926>.
imbue the term with a particular force and meaning.33 Words do not simply carry historical and
cultural baggage; rather, history and culture give words substance*and make them possible*in
the first place. Linguistic meanings therefore cannot be reduced to the attitudes of the particular
individual using the word, even though that individual is responsible for reinvoking them. A
confessional-therapeutic mindset cannot address this larger cultural question, primarily because
it downplays both the historical dynamics and power relationships that constitute language in the
first place.

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A2 Speech Wounds: Hate speech interpellates a certain


subject into being but it is a messy process which opens up a
space for agency, transgression, and resignification.
Bailey, Courtney. "Coming Out As Homophobic: Isaiah Washington And The Grey's Anatomy
Scandal." Communication and Critical/Cultural Studies, 8:1, 1-21. February 24, 2011.
Web. December 04, 2016. <http://dx.doi.org/10.1080/14791420.2010.541926>.
The contrast between Washington and Knight belied another conspicuous silence within
mainstream public discourse, namely black queer voices. As mentioned earlier, the outrage over
Washingtons explicit discussion of race seemed to arise, at least in part, from the perception that
he was trying to substitute race for sexuality. One problem with this interpretation is it
effectively erases the existence of queer people of color. Although there are difficult and serious
tensions between the white gay and black straight communities, mainstream coverage made
queer identity and black identity appear mutually exclusive. Despite this apparent erasure, black
queer activists did speak out on this issue in alternative media, such as blogs and the black and
gay presses.58 Perhaps the most notable example occurred when black lesbian activist Jasmyne
Cannick started a petition to keep Washington on Greys Anatomy as a direct response to the
petition demanding his dismissal.59 Mainstream coverage, however, seemed unable to make
space for an analysis that insisted on the intersection of race and sexuality and that refused to
engage confessional-therapeutic logic on its own terms (a logic to which mainstream gay and
lesbian organizations like GLAAD and HRC adhere). Keith Boykin, one of the few openly gay
black commentators in mainstream public culture, represents an exception to this rule. Butler
sees progressive potential in incidents of hate speech, precisely because the act of being named
calls a speaking subject into being by giving it a place within legible speech, even if that place is
a subordinate one. Furthermore, since the speaker can never fully control the consequences of
his/her utterance, naming produces a scene of agency from ambivalence, a set of effects that
exceed the animating intentions of the call.60 Just as the slur created a subject position for T.
R. Knight that both wounded him and allowed him to speak out publically, its repetition in the
press created a space for Boykin to be considered an expert. His affluent, clean-cut, and nonthreatening appearance likely facilitated his ability to act as an openly gay African American in a
media universe of mostly straight, white, male pundits. The Greys Anatomy scandal did result
in the containment of racial and sexual difference, but it was never total. In exposing the moral
boundaries of the culture, the scandal included transgressive moments that suggested other
possibilities for understanding homophobia and racism. Boykin also appeared on the
aforementioned episode of Paula Zahn Now, arguing that the Greys Anatomy scandal was as
much about race as sexuality and that the publics reaction had an anti-black tone. He
reminded the audience that Washington had played an openly gay role in Spike Lees film Get
on the Bus and that Washington had written an article for Essence magazine condemning
homophobia. By emphasizing a different view of Washington, one that aligned the actor with
anti-homophobia, Boykin provided an alternative understanding of black masculinity vis-a`-vis
sexuality. At the same time, Boykin did conclude his remarks by conceding that counseling was

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Bailey, Courtney. "Coming Out As Homophobic: Isaiah Washington And The Grey's Anatomy
Scandal." Communication and Critical/Cultural Studies, 8:1, 1-21. February 24, 2011.
Web. December 04, 2016. <http://dx.doi.org/10.1080/14791420.2010.541926>.
probably a good idea for Washington. In some ways, then, his comments remained firmly
entrenched within a confessional-therapeutic mindset. However, he also introduced the issue of
racism before almost anyone else in the mainstream press. He refused to privilege race over
sexuality or vice versa, instead arguing for the relevance of both. In a climate in which (to
paraphrase a highly influential feminist book) all the gays are white and all the blacks are
straight, that was at least a place to start.

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A2 Butler: The context of power in which speech arises need


not be static in order to injure.
Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
Butler's argument suffers from at least two problems. First, it is not the case that MacKinnon,
Matsuda, or Langton views the social structure as static or unchanging; second, it is not
necessary that the context be unchanging in order for it to be given some characterization as the
"context" or "total speech situation" in which a speech act occurs. I first briefly discuss this
second (and more general) point, and I then move to a more lengthy consideration of the first. In
emphasizing the need to provide an account of the "total speech sit-uation," Austin need not be
understood as requiring that the account of the context be static. To say that the context can be
given any particular descrip-tion right at this moment only means that there is some way that the
context can be characterized at this point in time. To the extent that an action that occurs within
that context (such as an utterance) has any meaning at all, its meaning must be located in some
understanding of the context, conventions, or "total speech situation." If future actions or events
change the under-standing we have of this particular context, we may come to understand the
"speech acts" that occurred within this context differently. This is not to say that the speech act
has no meaning, but it does suggest that meaning can shift over time and that what we once
thought meant one thing can actually later be discovered to have meant something else.

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A2 Butler: To determine whether or not speech has the


power to injure requires an analysis of the empirical reality
of particular social contexts. Thus, prefer the neg's empirical
studies over the aff's armchair philosophy.
Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
One of the most serious problems with Butler's work on hate speech and pornography seems to
be her evasion of questions of "power" and "author-ity" on the level of empirical social reality.
Butler suggests that because the context is never fully definable (it cannot be pinned down and
fully under-stood), there is no way that racism, sexism, and homophobia can be thought of as
having the power or authority they would need to have in order for racist and sexist hate speech
to be considered injurious illocutions. In fact, according to Butler, the possibility that these
contexts could change, or be interpreted differently in the future, suggests that there is not much
that can be said about the context of race, sex, gender, or dass oppression in current society. Is
there any sense in which pornography has authority? Is there any sense in which racist hate
speech is backed by institutional relations of power? In order to answer these questions, one must
look at the actual power rela-tions in society. Butler stops short of doing this, instead suggesting
that because the context is always shifting, and because there are "gaps" between intention and
effect, no speech act can be backed by the needed authority to be reliably thought to cause injury
In two different articles devoted to pornography and hate speech, Langton raises this issue of
"authority" and argues that the question of whether or not pornography subordinates rests in part
on the question of whether or not it has the authority to do so.' In discussing this issue, Langton
considers an argument by Leslie Green in which Green points out the following problem with
taking an illocutionary view of pornography's harm: "if saying simply is doing, there is no need
to worry about the contingent causal connection and the problematic evidence for it. The
evidence for the harm is the evidence for the saying."' But this overlooks the importance of the
social context, which must be examined to see if there is indeed evi-dence for the authority of
pornography.' Langton responds to Green by pointing out that causal questions are not the only
ones that are contingent and that require evidence. Although questions about whether or not an
umpire or an elected official has the authority to rule a ball out of bounds or to pass a law might
be answered easily, this does not mean that the illocu-tionary speech acts of these officials are
not contingent on certain conditions. Langton writes: [O]ne can imagine cases in which the
authority of an alleged umpire, an alleged legislator, is in dispute. And in the case of
pornography, evidence for the authority is much more controversial than evidence for the saying.
So the question about pornography's illocutionary force inevitably involves evidence and
contingent connections: if pornography had no authority, then I think it would not subordinate.'
Thus, in order to determine whether or not pornography has the authority to subordinate, one

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Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
needs to examine the role that it serves in society, its rela-tion to the status of women, and its
effect on the sexuality of both women and men, as well as a number of other such questions.
These are crucial issues and are not ones that can be settled "from the philosopher's armchair";55
one must look to empirical studies and to arguments about the effects of pornog-raphy in the
actual world. How prevalent is pornography? Whose interests does its proliferation serve? Does
it have any effect on the way that men and women view sexuality? Does it cause, contribute to,
or in any way affect women's subordination? Many of those who advocate restrictions on
pornog-raphyand on hate speechmake extensive reference to empirical studies that claim
that the social context is such that the injurious material does have the authority to injure. While
these studies certainly can be disputed, and while some empirical evidence exists to argue for the
opposing view, this evi-dence must at least be offered up in defense of the claim that
pornography and racist hate speech do not have the needed authority.

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A2 Neoliberalism AC: Punishing Individual Obscures


Larger Context. Legal hate speech regulation punishes not
just the individual, but making an utterance that
perpetuates a particular social context of subordination.
Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
As I have argued, however, Matsuda, Langton, and MacKinnon do not think that it is the
wordsor the utterancesthemselves that injure; rather it is the uttering of these words in some
particular social context. Taking legal action against hate speech can work to call attention not
only to the action of the individual perpetrator but also to the structures of oppression that give
the perpetrator's speech its injurious force. Thus, Butler is wrong to suggest that these theorists
reduce the structures of racism and sexism to the scene of utter-ance and prosecute only the
utterance; rather, what they are doing is holding individuals who utter racist, sexist, and
homophobic hate speech responsible for perpetuating these structures of oppression. Subjecting
such individuals to legal regulation is one way of challenging and attempting to alter oppres-sive
structures of power. This does not amount to the claim that an individ-ual is fully and completely
at faultthe structures of oppression out of which his or her speech act arises are not entirely, or
even mostly, the individual's own faultbut it is to say that in order to change hierarchical
structures, social and legal pressures must be brought to bear on those who perpetuate them.

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A2 Butler "Misfires" Argument: When speech fails to


injure, it is not accidental. Rather, it is in direct relation to
socially constructed power relations.
Schwartzman, Lisa. "Hate Speech, Illocution, And Social Context: A Critique Of Judith Butler."
Journal of Social Philosophy 33.3. December 19, 2002. Web. December 04, 2016.
<http://onlinelibrary.wiley.com/doi/10.1111/00472786.00151/abstract;jsessionid=F995ED26EE4D73DC06CCF83A4B190F42.f01t01>.
First, it is not entirely clear to what Butler is objecting. Does she think that language should not
work in a straightforward way? Clearly, Butler thinks that language cannot work this way, since
it is always to some extent unpre-dictable.66 I have argued, however, that MacKinnon, Langton,
and Matsuda actually agree with Butler's suggestion that language does not always succeed, but
they do not agree that the way that language fails is as random or arbitrary as Butler suggests.
According to their analysis of hate speech, certain groups of people have more power than others
to make their speech heard and understood; the chances that one's language will "misfire" are
greatest if one is deprived of certain forms of social power. For example, Langton argues that the
speech of women about matters of sex can be affected by pornographic images that suggest that
when women say "no" to sex, they really mean "yes."67 Thus, in a context in which such an
ideology about women's sexuality has taken hold, the speech of women will be more likely to
misfire than the speech of men about matters of sex. Both Langton and MacKinnon object to this
situation, but the grounds for their objection are that the current situation is unequal. Men benefit
from the way that language is systematically understood and misunderstood, according to their
analysis. Contrary to Butler's interpretation, MacKinnon and Langton do not claim that the
meaning of speech should always be determined solely by the speaker's intention; rather, these
theorists seek to equalize the systematic inequalities in the ways that different groups of people
have their speech understood. They object not to the unpredictability of speech, but to the fact
that it tends to fail (or "misfire") in predictable ways, according to lines of social and political
hierarchy. They seek to equalize power and to undo these hierarchies so that people all have a
more equal chance to have their speech mean what it says.

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Allowing the judicial system to define which speech is


injurious allows the judiciary to enact a particular violence
of its own through the ability to interpret protected and
unprotected speech.
Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
Two remarks of qualification: first, some critical race theorists such as Charles Lawrence will
argue that cross burning is speech, but that not all speech is to be protected, indeed, not all
speech is protected, and that racist speech conflicts with the Equal Protection Clause because it
hinders the addressed subject from exercising his or her rights and liberties. Other legal scholars
in critical race studies, such as Richard Delgado, will argue for expanding the domain of the
"fighting words" restriction on the First Amendment. Matsuda and MacKinnon, following the
example of sex discrimination jurisprudence, will argue that it is impossible to distinguish
between conduct and speech, that hateful remarks are injurious actions. Oddly enough, this last
kind of reasoning has reappeared in the recent policy issued on gays in the military, where the
statement, "I am a homosexual" is considered to be a "homosexual act." The word and the deed
are one, and the claim "I am a homosexual" is considered to be not only a homosexual act, but a
homosexual offence.46 According to this policy, the act of coming out is effectively construed as
fighting words. Here it seems that one must be reminded that the prosecution of hate speech in a
court runs the risk of giving that court the opportunity to impose a further violence of its own.
And if the court begins to decide what is and is not violating speech, that decision runs the risk of
constituting the most binding of violations. For, as in the case with the burning cross, it was not
merely a question of whether the court knows how to read the threat contained in the burning
cross, but whether the court itself signifies along a parallel logic. For this has been a Court that
can only imagine the fire engulfing the First Amendment, sparking the riot which will fray its
own authority. And so it protects itself against the imagined threat of that fire by protecting the
burning cross, allying itself with those who would seek legal protection from a spectre wrought
from their own fantasy. Thus the Court protects the burning cross as free speech, figuring those it
injures as the site of the true threat, elevating the burning cross as a deputy for the Court, the
local protector and token of free speech: with so much protection, what do we have to fear?

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Hate speech prosecution ignores the violence inherent to the


judicial decision which allows an arbitrary exertion of power
to define injurious acts.
Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
The Court seeks to decide whether or not the selection of the target of violence is a racially
motivated one by quoting Todd Mitchell's speech. This speech is then taken to be the effect of
having watched the film, indeed, to be the very extension of the speech that constitutes the text
of the film. But the Court is itself implicated in the extended text of the film, "indicted" by the
film as complicit with racial violence. Hence, the punishment of Mitchell and his friends-and the
attribution of racially selective motives to them-reverses the "charges" that the film makes
against the court. In R.A.V., the Court makes a cameo appearance in the decision as well,
reversing the agency of the action, substituting the injured for the injurer, and figuring itself as a
site of vulnerability. In each of these cases, the Court's speech exercises the power to injure
precisely by virtue of being invested with the authority to adjudicate the injurious power of
speech. The reversal and displacement of injury in the name of "adjudication" underscores the
particular violence of the "decision," one which becomes both dissimulated and enshrined once it
becomes the word of law. It may be said that all legal language engages this potential power to
injure, but that insight supports only the argument that it will be all the more important to gain a
reflective understanding of the specificities of that violence. It will be necessary to distinguish
between those kinds of violence which are the necessary conditions of the binding character of
legal language, and those kinks which exploit that very necessity in order to redouble that injury
in the service of injustice. The arbitrary use of this power is evidenced in the contrary use of
precedents on hate speech to promote conservative political goals and thwart progressive efforts.
Here it is clear that what is needed is not a better understanding of speech acts or the injurious
power of speech, but the strategic and contradictory uses to which the court puts these various
formulations. For instance, this same Court has been willing to countenance the expansion of
definitions of obscenity, and to use the very rationale proposed by some arguments in favor of
hate crime legislation to augment its case to exclude obscenity from protected speech.4 " Scalia
refers to Miller v California4 as the case which installs obscenity as an exception to the
categorical protection of content through recourse to what is "patently offensive," and then
remarks that in a later case, New York v Ferber,42 in exempting child pornography from
protection, there was no "question here of censoring a particular literary theme."43 What
constitutes the "literary" is thus circumscribed in such a way that child pornography is excluded
from both the literary and the thematic. Although it seems that one must be able to recognize the
genre of child pornography, to identify and delimit it in order to exempt it from the categorical
protection of content, the identifying marks of such a product can be neither literary nor
thematic. Indeed, the Court appears in one part of its discussion to accept the controversial
position of Catharine MacKinnon, which claims that certain verbal expressions constitute sex

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Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
discrimination, when it says "sexually derogatory 'fighting words' may produce a violation of
Title VII's general prohibition against sexual discrimination in employment practices."' But here
the Court is clear that it does not prohibit such expressions on the basis of their content, but only
on the basis of the effects that such expressions entail. Indeed, I would suggest that the
contemporary conservative sensibility exemplified by the Court and right-wing members of
Congress is also exemplified in the willingness to expand the domain of obscenity and, to that
end, to enlarge the category of the pornographic and to claim the unprotected status of both, and
so to position obscenity to become a species of "fighting words," that is, to accept that graphic
sexual representation is injurious. This is underscored by the rationale used in Miller v California
in which the notion of "appealing to prurience" is counterposed to the notion of "literary, artistic,
political, or scientific value." Here the representation which is deemed immediately and
unobjectionably injurious is excluded from the thematic and the valuable and, hence, from
protected status. This same rationale has been taken up by Jesse Helms and others to argue that
the National Endowment for the Arts is under no obligation to fund obscene materials, and then
to argue that various lesbian performers and gay male photographers produce work that is
obscene and lacking in literary value. Significantly, it seems, the willingness to accept the nonthematic and unobjectionably injurious quality of graphic sexual representations, when these
representations cannot be said to leave the page or to "act" in some obvious way, must be read
against the unwillingness to countenance the injuriousness of the burning cross in front of the
black family's house. That the graphic depiction of homosexuality, say, can be construed as nonthematic or simply prurient, figured as a sensuousness void of meaning, whereas the burning of
the cross, to the extent that it communicates a message of racial hatred, might be construed as a
sanctioned point in a public debate over admittedly controversial issues suggests that the
rationale for expanding the fighting words doctrine to include unconventional depictions of
sexuality within its purview has been strengthened, but that that the rationale for invoking
fighting words to outlaw racist threats is accordingly weakened. This is perhaps a way in which a
heightened sexual conservatism works in tandem with an increasing governmental sanction for
racist violence, but in such a way that whereas the "injury" claimed by the viewer of graphic
sexual representation is honored as fighting words, the injury sustained by the black family with
the burning cross out front, not unlike the injury of Rodney King, proves too ambiguous, too
hypothetical to abrogate the ostensible sanctity of the First Amendment." And it is not simply
that prohibitions against graphic sexual representation will be supported by this kind of legal
reasoning, whereas racist injury will be dignified as protected speech, but that racially marked
depictions of sexuality will be most vulnerable to prosecution, and those representations that
threaten the pieties and purities of race and sexuality will become most vulnerable.
*Ellipsis from source

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Arguing that words can wound obscures the power that


works throughout subject-formation, specifically
normalizing state power as a neutral apparatus rather than
a violent one.
Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
The following citation from On the Genealogy of Morals is usually read with an emphasis on the
retroactive positing of the doer prior to the deed; but note that simultaneous with this retroactive
positing is a moral resolution of a continuous "doing" into a periodic "deed": "there is no 'being'
behind doing, effecting, becoming; 'the doer' is merely a fiction added to the deed-the deed is
everything." 3 " ... es gibt kein 'Sein' hinter dem Tun, Wirken, Werden; 'der Tdter' ist zum Tun
blos hinzugedichtet-das Tun ist alles." 4 In the German, there is no reference to an "act"-die Tatbut only to a doing, "das Tun," and to the word for a culprit or wrong-doer, "der Titer," which
translates merely as a "doer." s Here the very terms by which "doing" is retroactively
fictionalized (hinzugedichtet) as the intentional effect of a "subject," establishes the notion of a
"doer" primarily as a wrong-doer. Furthermore, in order to attribute accountability to a subject,
an origin of action in that subject is fictively secured. In the place of a "doing" there appears the
grammatical and juridical constraint on thought by which a subject is produced first and foremost
as the accountable originator of an injurious deed. A moral causality is thus set up between the
subject and its act such that both terms are separated off from a more temporally expansive
"doing" that appears to be prior and oblivious to these moral requirements. For Nietzsche, the
subject appears only as a consequence of a demand for accountability; a set of painful effects is
taken up by a moral framework that seeks to isolate the "cause" of those effects in a singular and
intentional agent, a moral framework that operates through a certain economy of paranoid
fabrication and efficiency. The question, then, of who is accountable for a given injury precedes
and initiates the subject, and the subject itself is formed through being nominated to inhabit that
grammatical and juridical site. In a sense, for Nietzsche, the subject comes to be only within the
requirements of a moral discourse of accountability. The requirements of blame figure the
subject as the "cause" of an act. In this sense, there can be no subject without a blameworthy act,
and there can be no "act" apart from a discourse of accountability and, according to Nietzsche,
without an institution of punishment. But here it seems that Nietzsche's account of subjectformation in On the Genealogy of Morals exposes something of its own impossibility. For if the
"subject" is first animated through accusation, conjured as the origin of an injurious action, then
it would appear that the accusation has to come from an interpellating performative that precedes
the subject, one that presupposes the prior operation of an efficacious speaking. Who delivers
that formative judgment? If there is an institution of punishment within which the subject is
formed, is there not also a figure of the law who performatively sentences the subject into being?
Is this not, in some sense, the conjecturing by Nietzsche of a prior and more powerful subject?
Nietzsche's own language elides this problem by claiming that the "'der Tter' ist zum Tun blos

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Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
hinzugedichtet." This passive verb formation, "hinzugedichtet," poetically or fictively added on
to, appended, or applied, leaves unclear who or what executes this fairly consequential
formation. If, on the occasion of pain, a subject is belatedly attributed to the act as its origin, and
the act then attributed to the subject as its effect, this double-attribution is confounded by a third,
namely, the attribution of an injurious consequence to the subject and its act. In order to establish
injurious consequence within the domain of accountability, is it necessary not only to install a
subject, but also to establish the singularity and discreetness of the act itself as well as the
efficacy of the act to produce injury? If the injury can be traced to a specifiable act, it qualifies as
an object of prosecution: it can be brought to court and held accountable. But this tracing of the
injury to the act of a subject, and this privileging of the juridical domain as the site to negotiate
social injury, does this not unwittingly stall the analysis of how precisely discourse produces
injury by taking the subject and its spoken deed as the proper place of departure? And when it is
words that wound,6 to borrow Richard Delgado's phrase, how are we to understand the relation
between the word and the wound? If it is not a causal relation, and not the materialization of an
intention, is it perhaps a kind of discursive transitivity that needs to be specified in its historicity
and its violence? What is the relation between this transitivity and the power to injure? In Robert
Cover's impressive essay, Violence and the Word, he elaborates the violence of legal
interpretation as "the violence which judges deploy as instruments of a modern nation-state." 7
"Judges," he contends, "deal pain and death," 8 "for as the judge interprets, using the concept of
punishment, she also acts-through others-to restrain, hurt, render helpless, even kill the
prisoner."" Cover's analysis is relevant to the question of prosecuting hate speech precisely
because it underscores the power of the judiciary to enact violence through speech. Defenders of
hate speech prosecution have had to shift the analysis to acknowledge that agents other than
governments and branches of government wield the power to injure through words. Indeed, an
analogy is set up between state action and citizen action such that both kinds of actions are
understood to have the power to deny rights and liberties protected by the Equal Protection
Clause of the Constitution. Consequently, one obstacle that proponents of legislation against hate
speech have discovered is that the "state action doctrine" qualifies recourse to the Equal
Protection Clause in such instances, presuming as it does that only governments can be the
agents of harmful treatment that results in a deprivation of rights and liberties. ' To argue that
citizens can effectively deprive each other of such rights and liberties through words that wound
requires overcoming the restrictions imposed by the state action doctrine.' Whereas Cover
emphasizes the juridical power to inflict pain through language, recent jurisprudence has shifted
the terms away from the interpretive violence enacted by nation states and toward the violence
enacted by citizensubjects toward members of minority groups. In this shift, it is not simply that
citizens are said to act like states, but the power of the state is refigured as a power wielded by a
citizen-subject. By "suspending" the state action doctrine, proponents of hate speech prosecution
may also suspend a critical understanding of state power, relocating that power as the agency and
effect of the citizen-subject. Indeed, if hate speech prosecution will be adjudicated by the state, in
the form of the judiciary, the state is tacitly figured as a neutral instrument of legal enforcement.

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Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
Hence, the "suspension" of state action doctrine may involve both a suspension of critical insight
into state power and state violence in Cover's sense, but also a displacement of that power onto
the citizen, figured as a kind of sovereign, and the citizenry, figured as sovereigns whose speech
now carries a power that operates like state power to deprive other "sovereigns" of fundamental
rights and liberties." In shifting the emphasis from the harm done by the state to the harm done
by citizens and non-state institutions against citizens, a reassessment of how power operates in
and through discourse is also at work. When the words that wound are not the actions of the
nation-state-indeed, when the nation-state and its judiciary are appealed to as the arbiter of such
claims made by citizens against one another-how does the analysis of the violence of the word
change? Is the violence perpetrated by the courts unwittingly backgrounded in favor of a politics
that presumes the fairness and efficacy of the courts in adjudicating matters of hate speech? And
to what extent does the potential for state violence become greater to the degree that the state
action doctrine is suspended?
*Ellipsis from source

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Injurious words receive their power within a context of


iterability and citationality, which complicates the notion of
accountability. Rather than a singular act, injurious words
rely on multiple acts and interpretations.
Butler, Judith. "Burning Acts: Injurious Speech." The University of Chicago Law School
Roundtable: Vol. 3: Iss. 1, Article 9. January 1996. Web. December 07, 2016.
<http://chicagounbound.uchicago.edu/roundtable/vol3/iss1/9>.
If performativity requires a power to effect or enact what one names, then who will be the "one"
with such a power, and how will such a power be thought? How might we account for the
injurious word within such a framework, the word that not only names a social subject, but
constructs that subject in the naming, and constructs that subject through a violating
interpellation? Is it the power of a "one" to effect such an injury through the wielding of the
injurious name, or is that a power accrued through time which is concealed at the moment that a
single subject utters its injurious terms? Does the "one" who speaks the term cite the term,
thereby establishing his or herself as the author while at the same time establishing the derivative
status of that authorship? Is a community and history of such speakers not magically invoked at
the moment in which that utterance is spoken? And if and when that utterance brings injury, is it
the utterance or the utterer who is the cause of the injury, or does that utterance perform its injury
through a transitivity that cannot be reduced to a causal or intentional process originating in a
singular subject? Indeed, is iterability or citationality not precisely this: the operation of that
metalepsis by which the subject who "cites" the performative is temporarily produced as the
belated and fictive origin of the performative itself? The subject who utters the socially injurious
words is mobilized by that long string of injurious interpellations: the subject achieves a
temporary status in the citing of that utterance, in performing itself as the origin of that utterance.
That subject-effect, however, is the consequence of that very citation; it is derivative, the effect
of a belated metalepsis by which that invoked legacy of interpellations is dissimulated as the
subject as "origin" of its utterance. If the utterance is to be prosecuted, where and when would
that prosecution begin, and where and when would it end? Would this not be something like the
effort to prosecute a history that, by its very temporality, cannot be called to trial? If the function
of the subject as fictive origin is to occlude the genealogy by which that subject is formed, it is
also installed in order to assume the burden of responsibility for the very history that subject
dissimulates; the juridicalization of history, then, is achieved precisely through the search for
subjects to prosecute who might be held accountable and, hence, temporarily resolve the problem
of a fundamentally unprosecutable history. This is not to say that subjects ought not to be
prosecuted for their injurious speech; I think that there are probably occasions when they should.
But what is precisely being prosecuted when the injurious word comes to trial and is it finally or
fully prosecutable? That words wound seems incontestably true, and that hateful, racist,
misogynist, homophobic speech should be vehemently countered seems incontrovertibly right.
But does understanding from where speech derives its power to wound alter our conception of
what it might mean to counter that wounding power? Do we accept the notion that injurious

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speech is attributable to a singular subject and act? If we accept such a juridical constraint on
thought-the grammatical requirements of accountability-as a point of departure, what is lost from
the political analysis of injury when the discourse of politics becomes fully reduced to juridical
requirements? Indeed, when political discourse is fully collapsed into juridical discourse, the
meaning of political opposition runs the risk of being reduced to the act of prosecution. How is
the analysis of the discursive historicity of power unwittingly restricted when the subject is
presumed as the point of departure for such an analysis? A clearly theological construction, the
postulation of the subject as the causal origin of the performative act is understood to generate
that which it names; indeed, this divinely empowered subject is one for whom the name itself is
generative. According to the biblical rendition of the performative, i.e. "Let there be light!," it
appears that by virtue of the power of a subject or its will a phenomenon is named into being.
Although the sentence is delivered in the subjunctive, it qualifies as a 'masquerading'
performative in the Austinian sense. In a critical reformulation of the performative, Derrida
makes clear in relation to Austin that this power is not the function of an originating will, but is
always derivative: Could a performative utterance succeed if its formulation did not repeat a
"coded" or iterable utterance, or in other words, if the formula I pronounce in order to open a
meeting, launch a ship or a marriage were not identifiable as conforming with an iterable model,
if it were not then identifiable in some way as a "citation"? [i]n such a typology, the category
of intention will not disappear; it will have its place, but from that place it will no longer be able
to govern the entire scene and system of utterance [l'dnonciation].4 To what extent does
discourse gain the authority to bring about what it names through citing the linguistic
conventions of authority, conventions that are themselves legacies of citation? Does a subject
appear as the author of its discursive effects to the extent that the citational practice by which
he/she is conditioned and mobilized remains unmarked? Indeed, could it be that the production
of the subject as originator of his/her effects is precisely a consequence of this dissimulated
citationality? If a performative provisionally succeeds (and I will suggest that "success" is always
and only provisional), then it is not because an intention successfully governs the action of
speech, but only because that action echoes prior actions, and accumulates the force of authority
through the repetition or citation of a prior and authoritative set of practices. It is not simply that
the speech act takes place within a practice, but that the act is itself a ritualized practice. What
this means, then, is that a performative "works" to the extent that it draws on and covers over the
constitutive conventions by which it is mobilized. In this sense, no term or statement can
function performatively without the accumulating and dissimulating historicity of force. When
the injurious term injures (and let me make clear that I think it does), it works its injury precisely
through the accumulation and dissimulation of its force. The speaker who utters the racial slur is
thus citing that slur, making linguistic community with a history of speakers. What this might
mean, then, is that precisely the iterability by which a performative enacts its injury establishes 'a
permanent difficulty in locating accountability for that injury in a singular subject and its act.
*Ellipsis from source

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A2 Neoliberalism: Current Free Speech Rules privilege the


powerful and rely on a neoliberal subject of the law.
McLellan, Betty. "Pornography And The Myth Of Free Speech." Radical Hub. August 04, 2011.
Web. December 07, 2016. <http://www.feministes-radicales.org/wpcontent/uploads/2010/11/Betty-McLellan-Pornography-and-the-Myth-of-FreeSpeech.pdf>.
In my book Unspeakable: a feminist ethic of speech, published last year, I introduce the concept
of fair speech and insist that for speech to be truly free, and free for all, it must be fair. A
cursory look at the way democratic societies operate reveals some interesting facts about the kind
of free speech which is blind to the principle of fairness. I want to mention four of these facts
here: 1. FREE SPEECH FAVORS THE POWERFUL. Every day when I turn on the radio or
television, when I open the newspaper, its not your opinions I hear or read about, its not my
own speech being reported in the media its the views of the powerful. The views of politicians
are reported endlessly. Corporate bosses and industry leaders. Their opinions and business
dealings are always in our face. Also, reports on the behavior, good and bad, of high profile and
very well paid sportsmen. The wealthy power elite have access to all the speech they want, while
the rest of us the disempowered are silenced. Free speech certainly favors the powerful.
Following from that, my second point is: 2. FREE SPEECH ENTRENCHES INEQUALITY.
The more access one has to speech, the more powerful one becomes. And the more one is denied
speech, the more one is reminded of just how powerless one is. But, of course, its never clear
cut. Its not as simple as everyone who is rich and famous has automatic access to speech and
the rest of us have little to none. Some groups of people are given greater social authority than
others. Free speech, in favoring the more powerful over the less powerful, entrenches inequality.
3. FREE SPEECH FOCUSES ON THE INDIVIDUAL. In the United States, the First
Amendment focuses on the individuals right to freedom of speech and freedom of religion.
Today, neoliberalism and postmodernism encourage an individual perspective. Everyone has free
choice or agency they tell us. And if one individual accumulates more wealth than another,
its called healthy competition. If one individual dominates and destroys another, its called
survival of the fittest. If one individual rapes another, hes called one bad apple. An
individual focus rules out any socio-ethical analysis. 4. FREE SPEECH IGNORES ISSUES OF
QUALITY OF LIFE. Those who are silenced and subordinated by the inequalities inherent in the
principle of Freedom of Speech have a diminished quality of life. Those who are victims of other
peoples free speech hate speech, racial or religious vilification, physical, sexual and emotional
violence all victims of other peoples free speech have a diminished quality of life. Free speech
which is not also fair speech is a sham. Its free speech for the few and silence for the many.

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Eliminating certain forms of language to create safer spaces


reconstitutes the subject in that injury recreating
victimization.
Wooley, Susan. "Speech That Silences, Silences That Speak Thats So Gay, thats So
Ghetto, And Safe Space In Hig." Journal of Language and Sexuality 2:2. 2013. Web.
December 07, 2016.
<https://www.academia.edu/4831545/Speech_that_silences_silences_that_speak_Thats_s
o_gay_thats_so_ghetto_and_safe_space_in_High_School>.
The text in the GSA poster points to the potential prospect that a school environment absent of
expressions such as thats so gay would be a safer place for everyone. The GSA makes a
critical point that such language, commonly heard in the hallways and classrooms at MacArthur
High, shapes the context in which everyone including queer students, questioning students,
gender non-conforming students, and straight students alike must learn. The commonality of
hearing thats so gay to refer to something being bad or stupid and the reiterative practices of
naming things as such on a daily basis, in effect, create a schooling context that is not safe for
everyone. It is the labeling and naming practice of equating gay with something pejorative that
fuels the expressions interpellative force (Eckert & McConnell-Ginet 1995, 2003, Thurlow
2001). On occasion the GSA gave panel presentations on LGBTQ issues in classrooms across
the high school and brought up their experiences of language like thats so gay. During one
such panel, Tyrone asserted the offensiveness he finds in the expression thats so gay to a
classroom of thirty students some of whom were sitting in the back of the room, listening to
music, throwing things, chatting and laughing while a substitute teacher struggled to quiet them.
Tyrone, who selfidentified as a black and Puerto Rican bisexual boy and was otherwise softspoken and quiet, declared loudly over the rooms chatter, Terms like thats so gay or no
homo, even though there might not be any malice in it, you might not mean any harm by it, it
can still really hurt or offend someone who hears it from that community. He continued,
Because people use thats so gay as in thats so stupid, it implies that being gay is like being
stupid. And while we understand it may not mean that in the first place, we are still offended by
it. Tyrone experiences the expression as equating gay communities and identities with stupidity.
Thats so gay aligns being gay and LGBTQ people with something that is bad, undesirable, or
stupid and names LGBTQ people directly in slang intended to disparage or demean. Elijah a
self-identified white Jewish gay boy active in the GSA added, Its insulting our community.
By constituting the subject through the injury, using thats so gay to disparage and to
subordinate affects all the people and practices that are associated with and populate the word
gay. For the students in the GSA who felt thats so gay was akin to hate speech, the
expression caused an injury that named gay people as the ideological subjects of a qualifying
statement whose meanings are negative and pejorative. For the students who identify as gay or
for those who are seen by their peers as gay regardless of how they may identify, the expression
thats so gay interpellates them into the comment, naming them as equivalent to stupid or bad

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Wooley, Susan. "Speech That Silences, Silences That Speak Thats So Gay, thats So
Ghetto, And Safe Space In Hig." Journal of Language and Sexuality 2:2. 2013. Web.
December 07, 2016.
<https://www.academia.edu/4831545/Speech_that_silences_silences_that_speak_Thats_s
o_gay_thats_so_ghetto_and_safe_space_in_High_School>.
and making them the subject of the insult, if at times inadvertently. A common misconception is
that all the students in a GSA must be gay, lesbian, bisexual, transgender, or queer, when in
actuality some are heterosexual, some are questioning how they may identify, while others come
from queer families. Language like thats so gay impacts all students experiences of safe
space in school regardless of how they may self-identify. The process of interpellation occurs in
gay being named as representing the undesirable, stupid, and worthless quality to which
something is being compared. This is experienced by the students in the GSA as the instant
recognition and location of interpellation (Law 2000), placing them in a subordinate social
position and wielding their identity and community as the basis of an insult. It also names its
superior other, or heterosexuality. Yet, as Leonardo and Porter (2010: 149) demonstrate, for
marginalized and oppressed minorities, there is no safe space. Attempting to construct a safer
space by eliminating injurious speech such as thats so gay both works against open critical
dialogue and reinscribes the power of such words through silence. Through its visual medium,
the GSAs poster creates borders around what is permissible speech, but in an attempt to sanitize
language, it potentially shuts down dialogue. While the sign pushes students to reconsider the
meanings and effects of their words, it frames the students words as derogatory. The posters,
meant to prevent hate speech, inadvertently enact silencing of parallel and intersecting
discussions of race, class, gender, and sexuality. What are the limits and unintended
consequences of censorship? How can we open up spaces for dialogue across difference?

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The language of leftist censors have been co-opted by the


right to ban political and subversive art, preventing aesthetic
liberation strategies.
Adler, Amy. "Whats Left?: Hate Speech, Pornography, And The Problem For Artistic
Expression." California Law Review, Vol. 84, No. 6. December 1996. Web. December
07, 2016. <http://www.jstor.org/stable/3481093>.
The failure of leftist censors to consider the shifting nature of lan- guage may lead to a
nightmarish situation: they may end up silencing the David Wojnarowiczes of the world and not
the David Dukes. Just as the political left often relies on far right-wing expressions of hatred as
the source of its activist political critique, so the right-wing borrows the language of the left for
its conservative agenda. For example, in the same way that David Wojnarowicz uses hate speech
against homosexuals to make his gay activist point, conservative activists adopt the leftist
rhetoric of discrimination and victimization and use it to fight against (traditionally leftist) antidiscrimination policies.19" David Duke speaks of "discrimination" suffered by "victim[ized]"
white men as he cam- paigns against affirmative action.'92 Reverend Don Wildmon, leader of
the conservative anti-pornography, anti-homosexual American Family Association ("AFA"),193
appropriates explicit homosexual images from David Wojnarowicz's work and distributes them
in an anti-NEA, anti- homosexual pamphlet.'94 Stanley Fish has commented that "[1]iberals and
progressives have been slow to realize that their preferred vocabu- lary has been hijacked."'95
How ironic that the left's rhetoric of censorship has itself been adopted by none other than
Senator Helms in his tireless campaign to ban federal funding for sexual or "offensive" images in
art. Helms' proposed funding legislation sounded as if it had sprung from the pages of Mari
Matsuda. He sought to eliminate federal funding for artwork that "denigrates, debases or reviles
a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national
origin."'96 As one critic has noted, "the discourse of liberal antidiscrimination legislation is
being appropriated and re-articulated into a right-wing po- sition that promotes a discriminatory
politics of cultural censorship and ideological coercion."'97 Does this not give leftist censors
pause? Must not a politically mo- tivated theory of speech-banning account for the way in which
the same words or text can work both for or against any political goal? The very method by
which the rhetoric of the left has been so quickly co-opted by the political right demonstrates that
there is an unstable and ma- nipulable quality to language. It is as if language's infidelity were
be- fore the left's very eyes.
*Ellipsis from source

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Leftist censorship has been co-opted by the right to ban


forms of subversive political speech, foreclosing potential
liberatory art forms.
Adler, Amy. "Whats Left?: Hate Speech, Pornography, And The Problem For Artistic
Expression." California Law Review, Vol. 84, No. 6 (Dec., 1996), pp. 1499-1572.
December 1996. Web. December 07, 2016. <http://www.jstor.org/stable/3481093>.
The failure of leftist censors to consider the shifting nature of lan- guage may lead to a
nightmarish situation: they may end up silencing the David Wojnarowiczes of the world and not
the David Dukes. Just as the political left often relies on far right-wing expressions of hatred as
the source of its activist political critique, so the right-wing borrows the language of the left for
its conservative agenda. For example, in the same way that David Wojnarowicz uses hate speech
against homosexuals to make his gay activist point, conservative activists adopt the leftist
rhetoric of discrimination and victimization and use it to fight against (traditionally leftist) antidiscrimination policies.19" David Duke speaks of "discrimination" suffered by "victim[ized]"
white men as he cam- paigns against affirmative action.'92 Reverend Don Wildmon, leader of
the conservative anti-pornography, anti-homosexual American Family Association ("AFA"),193
appropriates explicit homosexual images from David Wojnarowicz's work and distributes them
in an anti-NEA, anti- homosexual pamphlet.'94 Stanley Fish has commented that "[1]iberals and
progressives have been slow to realize that their preferred vocabu- lary has been hijacked."'95
How ironic that the left's rhetoric of censorship has itself been adopted by none other than
Senator Helms in his tireless campaign to ban federal funding for sexual or "offensive" images in
art. Helms' proposed funding legislation sounded as if it had sprung from the pages of Mari
Matsuda. He sought to eliminate federal funding for artwork that "denigrates, debases or reviles
a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national
origin."'96 As one critic has noted, "the discourse of liberal... antidiscrimination legislation is
being appropriated and re-articulated into a right-wing po- sition that promotes a discriminatory
politics of cultural censorship and ideological coercion."'97 Does this not give leftist censors
pause? Must not a politically mo- tivated theory of speech-banning account for the way in which
the same words or text can work both for or against any political goal? The very method by
which the rhetoric of the left has been so quickly co-opted by the political right demonstrates that
there is an unstable and ma- nipulable quality to language. It is as if language's infidelity were
be- fore the left's very eyes.
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Deconstructive proves that "intent" is never a discernable


device to evaluate the "good" or "bad" forms of speech.
Political art, as a result will suffer.
Adler, Amy. "Whats Left?: Hate Speech, Pornography, And The Problem For Artistic
Expression." California Law Review, Vol. 84, No. 6 (Dec., 1996), pp. 1499-1572.
December 1996. Web. December 07, 2016. <http://www.jstor.org/stable/3481093>.
In deconstructive practice, intent, long considered a guide to inter- pretation of texts, becomes
not only impossible to discover, but also ir- relevant to what a text may "mean."232 Therefore,
deconstructive interpretations, recognizing the instability of language, have simultane- ously
dismantled the traditional deference given to the author and pos- ited a more powerful role for
the interpreter of speech. Yet rather than simply reversing the traditional hierarchy that privileges
the author over the reader, deconstruction allows both forces to exist in tension. Roland Barthes,
the first critic to let out what was later to become the decon- structive battlecry of the "death of
the author," wrote, "[The author's] signature is no longer privileged and paternal, the locus of
genuine truth ... His life is no longer the origin of his fables, but a fable that runs concurrently
with his work."233 The deconstructive manifesto of the "death of the author" had a specific
target: it derided the notion that an author's "intent" was ei- ther ascertainable or relevant to the
interpretation of a text.234 Because contemporary political speakers directly exploit this aspect
of decon- struction, an inquiry into their intentions proves trouble- some: subjecting recent
activist speech to an intentionality inquiry would evaluate this speech according to one of the
very criteria that it resists and criticizes.235 This theory-that an author's intention is an unreliable
guide to discerning the "meaning" of speech-is borne out in actual examples of activist speech.
Take, for instance, the glorified photographs of Klansmen by the black-Hispanic artist Andres
Serrano discussed above in Part III. We might assume that simply by inquiring into Serrano's
intent-his motives in taking these photographs of Klan grand wizards-we would quickly solve the
problem of whether his words should be preserved under a political censorship theory. But
Serrano's photographs thwart us. In their stunning ambiguity-the way they present Klansmen in
regal, heroic poses-they challenge our prejudices and our tendency to rely on the artist's intention
as a guidepost. Serrano's statements about his intent are as ambiguous as his pictures. He has said
of the Klansmen he photographed, "The ones who were nice to me were genuinely nice ... I can't
make judgments about these people."236 Would an inquiry into intent be helpful in evaluating
David Wojnarowicz's photograph of graffito that read "Fight AIDS Kill a Quere?"237 At first,
intent may seem to be an obvious criterion to employ in distinguishing Wojnarowicz's artwork
from the hate speech he co-opted. Wojnarowicz was a homosexual AIDS activist who was HIVpositive when he made the photograph. Can't we assume that he intended to subvert the hateful
message he quotes?
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The subversive strategy of speech that hate speech codes will


censor speech that can be appropriated as a means for selfprotection.
Adler, Amy. "Whats Left?: Hate Speech, Pornography, And The Problem For Artistic
Expression." California Law Review, Vol. 84, No. 6 (Dec., 1996), pp. 1499-1572.
December 1996. Web. December 07, 2016. <http://www.jstor.org/stable/3481093>.
The subversive mode lies at the heart of the leftist activist tradition for two reasons. First, it
represents the mode of discourse most readily available to outsiders. Second, it is often the most
effective form of out- sider speech. Therefore, the danger to activist speech, and the amount of
activist speech that is threatened under leftist censorship theories, is much greater than leftist
censors might imagine. Ironically, the same theorists who lead the anti-hate speech move- ment
have, in other contexts, acknowledged the centrality of the sub- versive mode to outsider politics.
These same opponents of hate speech are often leading proponents of the move towards
"storytelling," the infusion of the personal into legal doctrine. As Richard Delgado, one of the
scholars who wears both hats, has written, "The dominant group creates its own stories. in which
its own superior position is seen as natural. The stories of outgroups aim to subvert that ingroup
reality."284 Delgado argues that to succeed, these "counterstories" must proceed subtly. They
must "challenge the received wisdom"285 while appearing to reinforce it. "Stories and
counterstories, to be effec- tive, must be or must appear to be noncoercive... They are insinuative
not frontal ..."286 Delgado implicitly recognizes that outsiders rely on such techniques because
they do not have the power to speak directly. His analysis reveals that the subtle modes of
subversion or deconstruction are particularly well-suited to powerless voices because their
insinuative, rather than confrontational, method can be a means of self-protection. Thus, at issue
here is a central form of political speech for disempowered groups. Leftist activists have always
known this. Charles Chesnut, who in the late 1880s became the first African-American novelist
to achieve recognition in this country, wrote: The subtle almost indefinable feeling of repulsion
toward the Negro, which is common to most Americans-cannot be stormed and taken by assault;
the garrison will not capitulate, so their position must be mined, and we will find ourselves in
their midst before they think it.287 Subversive speech, which attacks stereotypes while appearing
to rein- force them, thus protects the outsider speaker from the danger of dis- sent: insiders may
not realize that the speaker is subtly criticizing the very language he quotes. As a critic wrote of
outsider artistic expres- sion, "[R]esistance within a colonial context is rarely direct, overt or
literal; rather, it articulates itself through semantic reversals, and through the process of infusing
icons, objects, and symbols with different meanings."'28
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Subversive speech practices are also the most accessible to


those who have been disempowered.
Adler, Amy. "Whats Left?: Hate Speech, Pornography, And The Problem For Artistic
Expression." California Law Review, Vol. 84, No. 6 (Dec., 1996), pp. 1499-1572.
December 1996. Web. December 07, 2016. <http://www.jstor.org/stable/3481093>.
Subversive speech suits disempowered speakers for another reason as well. Because outsider
speakers tend to have fewer resources than insiders, this mode of appropriating insider speech is
both more available to them and more easily accessible to a large audience. As a contemporary
outsider artist explained, "In a war in which you have no weapons, you must take those of your
enemy and use them for something better-like throwing them back at him."289 A cultural critic
explains it this way: "[T]he only resources from which the subordinated can make their own
subcultures are those provided by the system that subordinates them."2" There may be no choice
for outsider speakers other than to work within the language imposed on them by the very insider
culture they seek to resist. Some critics insist that it would be impossible for outsiders to create
their own language, and that to believe otherwise would be a naive denial of the way in which
language and power intertwine.291 It should come as no surprise, therefore, that others have
argued that subversion is at the heart of the African-American literary and ver- nacular traditions.
In his landmark book, The Signifying Monkey,292 Professor Henry Louis Gates, Jr. offers a
richly complex theory of these traditions, using as a metaphor the eponymous story of the
signifying monkey, a black oral tale that has its origins in slavery and persists throughout
contemporary African-American literature, vernacular, and art.293 Gates' theory offers an
astonishing challenge to leftist censors because it asserts that the interpretation-defying
techniques that I have examined-subversion and reversal-are the central mode of this out- sider
group's discourse. For Gates, the African-American literary, vernacular, and artistic traditions
operate by "the obscuring of apparent meaning."294 He writes of the "undecidability within the
discourse, such that it must be interpreted or decoded by careful attention to its play of
differences. Never can this interpretation be definitive, given the ambiguity at work in its
rhetorical structures."295 Gates explains that misinterpretation frequently arises because nonblacks do not realize that black speakers reverse the apparent meanings of their words "as a
mode of encoding for self-preservation."296 The outsider speaker, by virtue of his very position
as outsider, cannot afford to speak literally. Rather, he must proceed subtly, by reversal and
subversion; he must speak in code, if his message is to prevail.297 This lesson has ramifications
for all outsider speakers. It explains why we have seen such a prevalence of this technique in the
activist work that I have examined, why the reversals of pornography and hate speech by activist
speakers recur with such frequency: outsider groups necessarily depend on subversive language.
The theory of the signifying monkey becomes a parable of the grave danger of misreading outsider speech, of the failure to recognize that interpretation of this rhetoric can "[n]everbe
definitive."298 It is a parable that leftist censors must heed.
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Slippery Slope AC

What truly makes this Affirmative a strategic case to run, is your ability to control links
and internal links in the round. Instead of trying to construct larger external impacts, the case
instead focuses on the heart of the topic, and in which direction links should go.
You should use not only constitutional spillovers, but broader institutional change, such
as social movements and racial discrimination in order to preempt the arguments that will likely
be read by the Negative Team. Investing time out of the AC to fire off quick arguments about
how you will be controlling the implications and links of the Negative not only makes your
second speech easier, but also forces the Negative to either drop your arguments or do extensive
evidence comparison to get ahead in the debate. For instance, making a preemptive claim that a
firm stance on privacy is essential to protect from larger surveillance spillovers onto campus,
such as informant policies, will allow you to turn claims about Hate Speech, and allow you to
adequately weigh impacts. Unfortunately, the question of racism, social movements, and equality
will likely become a murky debate, and you need to ensure that your arguments are articulated
concisely to avoid a judge making a gut check decision.
However, the main way to avoid this murky debate, is to have some sure-fire impacts that
you will definitely be winning after the two constructives. This argument should be a democracy,
or enlightment value spillover contention, that not only makes intuitive sense for the judge, but is
also extremely supported by the literature base for the topic. Using cross examination time to
further question how things like Hate Speech is uniformly defined in legislation further proves
your point that it will be vaguely used to enact silencing policies.

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It is our moral imperative to uphold freedom of speech


Bans create racial discrimination and force compliance with
US views on international relations.
Friedersdorf, Conor. "Free Speech On Campus Is Under Attack." The Atlantic. March 04, 2016.
Web. December 05, 2016. <http://www.theatlantic.com/politics/archive/2016/03/theglaring-evidence-that-free-speech-is-threatened-on-campus/471825/>.
To perceive no threat is to ignore reality. Or forget big speeches and look to another example of
left-leaning speech that is threatened. As Glenn Greenwald wrote at The Intercept, One of the
most dangerous threats to campus free speech has been emerging at the highest levels of the
University of California system, the sprawling collection of 10 campuses that includes UCLA
and UC Berkeley. The universitys governing Board of Regents, with the support of University
President Janet Napolitano and egged on by the states legislature, has been attempting to adopt
new speech codes thatin the name of combating anti-Semitismwould formally ban various
forms of Israel criticism. He continued: Under the most stringent such regulations, students
found to be in violation of these codes would face suspension or expulsion. In July, it appeared
that the Regents were poised to enact the most extreme version, but decided instead to push the
decision off until September, when they instead would adopt non-binding guidelines to define
hate speech and intolerance. One of the Regents most vocally advocating for the most
stringent version of the speech code is Richard Blum, the multi-millionaire defense contractor
who is married to Sen. Dianne Feinstein of California. At a Regents meeting last week, reported
the Los Angeles Times, Blum expressly threatened that Feinstein would publicly denounce the
university if it failed to adopt far more stringent standards than the ones it appeared to be
considering, and specifically demanded they be binding and contain punishments for students
found to be in violation. The San Francisco Chronicle put it this way: Regent Dick Blum said
his wife, U.S. Sen. Dianne Feinstein, D-Calif., is prepared to be critical of this university unless
UC not only tackles anti-Jewish bigotry but also makes clear that perpetrators will be punished.
The lawyer Ken White wrote that Blum threatened that his wife would interfere and make
trouble if the Regents didnt commit to punish people for prohibited speech. As campus First
Amendment lawyer Ari Cohn put it the following day, Feinstein and her husband think college
students should be expelled for protected free speech. For now, no such speech code has been
adopted. Does Stanley deny that the powerful, politically connected forces pushing for it are a
threat to speech on campus? There are still more examples. Here is a Marquette professor whose
tenure was threatened over a blog post. Two years ago, I wrote about the NYPDs efforts to spy
on Muslim students using undercover agents for no reason other than their religion, an effort that
spanned months and produced zero leads. Anyone who doubts that this abhorrent profiling
chilled the speech of an ethnic-minority group should inform themselves about their
understandable reaction to discovering that government spies were in their midst. To sum up:
free speech on campus is threatened from a dozen directions. It is threatened by police spies,
overzealous administrators, and students who are intolerant of dissent. It is threatened by
activists agitating for speech codes and sanctions for professors or classmates who disagree with

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Friedersdorf, Conor. "Free Speech On Campus Is Under Attack." The Atlantic. March 04, 2016.
Web. December 05, 2016. <http://www.theatlantic.com/politics/archive/2016/03/theglaring-evidence-that-free-speech-is-threatened-on-campus/471825/>.
them. It is threatened by people who push to disinvite speakers because of their viewpoints and
those who shut down events to prevent people from speaking. Harper and Stanley were
unpersuaded that free speech is under threat not because they defend speech codes or sanctions
both say outright at different times that they are for untrammeled speechbut because they are
blind to the number and degree of threats to speech. And this whole discussion has been
restricted to documented, overt threats to speech. Chilling effects are harder to quantify or cite,
but they are real. Professors and students see those around them being punished for their
viewpoints and decide to hold their tongues rather than speak their minds. Stanley denies that
this is a significant problem. And yet, last semester, without looking very hard, I found and
spoke to tenured and non-tenured professors and students at Yale, his own institution, who told
me that their speech was chilled. They feared that their place at the school would be jeopardized
if they opined honestly about campus controversies; or did not want to be targets of intolerant
activists like the ones who spat on lecture attendees because the activists disagreed with words
spoken at the lecture. The evidence that free speech is threatened on college campuses is
overwhelming. Doubters who cant accurately characterize the evidence should study the
relevant material more thoroughly before dismissing free-speech concerns and impugning the
motives of the people who raise themespecially if, like Harper and Stanley, they earnestly
believe that free speech should be protected. I urge them to look again at the evidence and to join
other liberals already engaged in this fight. The marginalized college students of the future will
thank them.

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The institution of speech restrictions stifles social change and


damages the entirety of American Democracy.
Maloney, Cliff. "Colleges Have No Right To Limit Students Free Speech." Time. October 13,
2016. Web. December 05, 2016. <http://time.com/4530197/college-free-speech-zone/>.
University campuses are now home to a plethora of speech restrictions. From sidewalk-sized
free-speech zones to the criminalization of microaggressions, Americas college campuses
look and feel a lot more like an authoritarian dictatorship than they do the academic hubs of the
modern free world. When rolling an inflated free-speech ball around campus, students at the
University of Delaware were halted by campus police for their activities. A Young Americans
for Liberty leader at Fairmont State University in West Virginia was confronted by security
when he was attempting to speak with other students about the ideas he believes in. A man at
Clemson University was barred from praying on campus because he was outside of the freespeech zone. And a student at Blinn College in Texas abolished her campus free-speech zone in
a lawsuit after administrators demanded she seek special permission to advocate for self-defense.
How have we let this happen in America, the land of the free? Its because of what our
universities have taught a generation of Americans: If you dont agree with someone, are
uncomfortable with an idea, or dont find a joke funny, then their speech must be suppressed.
Especially if they dont politically agree with you. Instead of actually debating ideas that span
topics from the conventional to the taboo, a generation of American students dont engage, they
just get enraged. In doing so, many students believe that they have a right to literally shut other
people up. This is not only a threat to the First Amendment, but also to American democracy. In
their manifestation, safe spaces and free-speech zones at public universities enable prejudice
against unfavorable ideologies. Guised as progressive measures to ensure inclusion, these often
unconstitutional policies exclude new and competing ideas, and are antithetical to a free
academia. In excluding different ideologies, supposedly progressive campus speech codes do one
thing: prevent the progression of ideas. Restrictive campus speech codes are, in fact, regressive.

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Even when Speech equality is difficult, Criticisms generated


through Free Speech can correct those broader institutions
through change.
SCHUESSLER, JENNIFER. "Can Cries Of Free Speech Be A Weapon? Students Say Yes."
NY Times. October 16, 2016. Web. December 05, 2016.
<http://www.nytimes.com/2016/10/17/arts/pen-warns-that-college-students-often-seefree-speech-as-a-cudgel.html?_r=0>.
Greg Lukianoff, the president and chief executive of FIRE, said that he welcomed PENs report,
some of which was described to him by a reporter. But he questioned both the thrust of its
account of the Yale incident, as well as the perception among many progressive students and
faculty that the campaigns to protect free speech rights have been put in service of a right-wing
agenda. Right now, its true, some of the louder voices are libertarian or conservative, Mr.
Lukianoff said. But free speech is something we should all be able to come together on. The
PEN report may be broadly sympathetic to students, but some of them may be hard to win over.
While it supports limited, voluntary safe spaces within campuses where students can
recharge with those from a particular group, it calls for campuses as a whole to be seen instead
as safe places free of physical danger, but intellectually and ideologically open. Storm
Ervin, a co-founder of Concerned Student 1950, a group at the University of Missouri that
organized protests last fall against what many students saw as a racially hostile environment, said
that she recognizes the importance of free speech. Free speech is the reason we were allowed to
protest, she said in an interview. But Ms. Ervin, like many fellow students, does not see
untrammeled free expression as always the paramount value, or one that is easily reconciled with
equality and inclusion.

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Despite any flaws, Free Speech is still inseparable from every


successful social movement that was critical to progressive
change.
Snyder, Jeffrey Aaron. "The Dangers Of Not Valuing Free Speech On Campuses (essay)." Inside
Hired. September 01, 2016. Web. December 05, 2016.
<https://www.insidehighered.com/views/2016/09/01/dangers-not-valuing-free-speechcampuses-essay>.
It would also be disingenuous for strong advocates of free expression to dismiss the charge that
ringing the free speech alarm bell sometimes serve as an excuse to malign student protesters and
deflect attention from pressing conversations about racism or other social problems. This
diversion thesis is not without merit -- just take a few minutes to skim through the
contemptuous stories about campus activism on websites such as The College Fix, the Daily
Caller or Heat Street. But free speech, we are obliged to acknowledge, has been at the heart of
every single successful movement devoted to expanding citizenship rights and enlarging the
charmed circle of we the people, from abolitionism and womans suffrage to marriage
equality. So its especially ironic that, while some students compare unfettered free speech to
lynching, todays most energetic social movement is devoted to ending violence against black
people. Emerging from a hashtag, Black Lives Matter would not be a household name or a
substantial political force without First Amendment rights, including the freedom of speech, the
press and assembly. Rue the day that free speech starts to appear more regularly in scare
quotes. If we encourage the same kind of sneering disdain for free speech that some reserve for
ideas like colorblindness, meritocracy and the American dream, we will be in deep trouble.
Our democracy will be impoverished and so too will our minds. Taking any kind of stand that
undercuts free speech is like launching a vendetta on the air we breathe. If its successful, we
will all suffocate.

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A2 Safe Space AC: Free Speech zones are insufficiently sized


and used to be effective Inconvenient time frame for
reservation ensures they are underused.
Wheeler, Lydia. "Colleges Are Restricting Free Speech On Campus, Lawmakers Say." The Hill.
February 02, 2016. Web. December 05, 2016. <http://thehill.com/regulation/243785colleges-are-restricting-free-speech-on-campus-lawmakers-say>.
In protecting students from harassment and discrimination, lawmakers and experts say public
colleges and universities are violating students right to free speech on college campuses. During
a House Judiciary Constitution and Civil Justice Subcommittee Hearing on First Amendment
protections on public college and university campuses, Greg Lukianoff, president and CEO of
the Foundation for Individual Rights in Education (FIRE), said one in six universities maintain
free speech zones small, out-of-the-way areas where they can hold rallies, demonstrations,
distribute literature, circulate petitions and give speeches. In a lot of these cases they are free
speech zones that you have to apply 10 days in advance to use, he said. Other campuses,
Lakianoff said have speech codes that flat out ban free speech. According to the Department of
Education, about 21 million students were expected to attend a college or university in 2014 and
according to the U.S. Bureau of Labor Statistics, about 70 percent of high school graduated in
2014 were enrolled in college s or universities. As more and more young people got to college,
Goodlatte asked how campus policies regulating speech will effect them.

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Modern Campus Anti-Privacy ethics are based on a fear of


constructed threats of terror Forcing students to choose
security and construe expressive rights as obsolete.
Cole, Jonathan. "The Chilling Effect Of Fear At America's Colleges." The Atlantic. June 09,
2016. Web. December 05, 2016.
<http://www.theatlantic.com/education/archive/2016/06/the-chilling-effect-offear/486338/>.
Born in the mid-1990s, seniors in my Columbia University undergraduate seminars today likely
have not experienced major national threats, except for their vague memories of the 9/11 terrorist
attacks. Yet these millennials might better be labeled children of war and fear. During their
politically conscious lifetime, they have known only a United States immersed in protracted wars
against real and so-called terrorists, a place where fear itself influences their attitudes toward
other civil liberties. Students are asked to pit freedom of expression or privacy against personal
security. During times when elected officials have exploited the publics fear of terrorism for
political gain, students seem more willing to trade civil liberties for a sense of security. Since the
9/11 tragedy, the use of fear is still pervasive in the United States. Indeed, the distortion of fear
pervades todays students thinkingthey tend to overestimate, for example, the probability of a
terrorist attack affecting them. When this fear is combined with the rapid expansion of social
media and the prevalence of government surveillance, students often dismiss concepts like
privacy as old-fashioned values that are irrelevant to them, In fact, my experience at Columbia
suggests that many students believe that the very idea of privacy is obsolete; most of my students
dont seem to mind this loss when its weighed against uncovering potential terrorists.

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Broad legislation of hate speech fails and normalizes racism


it makes intolerance synonymous with indicts of the state
and larger government institutions.
Times Editorial Board. "Undermining Free Speech On Campus." LA Times. December 06, 2016.
Web. December 06, 2016. <http://www.latimes.com/opinion/editorials/la-ed-senateantisemitism-20161202-story.html>.
As we noted last year in opposing a campaign to have the University of California endorse this
same definition: Its hard to see how these standards could be transplanted to the campus of a
public university committed to a robust exchange of views and subject to the free-speech
provisions of the 1st Amendment. Would pro-Palestinian students who mounted a protest against
Israeli policies in the West Bank be judged anti-Semites because they didnt also demonstrate
against repression in Egypt or Russia? What about a student who wanted to argue that Israel
should be replaced by a nonsectarian state? Even those who find such a position unrealistic or
undesirable might agree that it neednt be driven by hatred for Jews. Eventually UCs regents
decided not to endorse this definition, instead adopting a set of principles against intolerance
that condemned what they called anti-Semitic forms of anti-Zionism as one of several forms of
discrimination that had no place at the university. Backing off the original proposal was a wise
decision that balanced a legitimate concern about unacceptable bigotry with a respect for free
speech. The same balanced approach should guide the federal government. It should by all
means continue to enforce the existing language in Title VI of the Civil Rights Act, which
prohibits discrimination on the basis of race, color, or national origin at educational institutions
that receive federal aid (and which government lawyers also interpret to protect religious
minorities). But if the Anti-Semitism Awareness Act were to pass, it would require the Education
Department to take into consideration the State Department definition in determining whether
an alleged action was motivated by anti-Semitic intent, and thus possibly a violation of Title VI
that could lead to a loss of federal funding. While the bill passed by the Senate includes an
assurance that it is not meant to diminish or infringe upon any right protected under the 1st
Amendment," that is exactly what it does. Its overly broad definition of anti-Semitism would
blur the distinction between acts of intolerance directed at individuals and criticism of the state
of Israel. University officials and the Education Department must be vigilant in preventing and
punishing the former; they have no business policing the latter.

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Constitutional Free Speech is currently being threatened on


campuses, absent sufficient resistance.
Friedersdorf, Conor. "Free Speech On Campus Is Under Attack." The Atlantic. March 04, 2016.
Web. December 06, 2016. <http://www.theatlantic.com/politics/archive/2016/03/theglaring-evidence-that-free-speech-is-threatened-on-campus/471825/>.
At a recent Intelligence Squared debate, an audience filled an auditorium at Yale University to
weigh the timely proposition, Free speech is threatened on campus. The debate concerned
higher education generally, not just the host institution. And at the events conclusion, having
heard arguments on both sides of the question, 66 percent of the crowd agreed: free speech is
threatened. That represented a 17-point shift from a poll taken as the event began. The evidence
is that persuasive. One of the losers in the debate was Professor Shaun Harper of the University
of Pennsylvania, who heads its Center for the Study of Race and Equity in Education. He began
by noting that there has been a significant increase in the demand for our campus climate work
since last semesters protests. In fact, he added, this past December, we brought together 8,000
college presidents and other senior leaders who came to us for guidance on how to respond to
racism on their campuses.

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Free Speech changes traditional impact calculusdemanding


its protection is consequential and deontological.
Schauer, Frederick. "Is It Better To Be Safe Than Sorry?: Free Speech And The Precautionary
Principle." Pepperdine Law Review. March 15, 2009. Web. December 06, 2016.
<http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1073&context=plr>.
Those who urge terrorist acts, or provide instructions or recipes for their commission, may
possibly produce catastrophic effects, but the First Amendment, so the doctrine concludes,
demands that we take the risk. To put essentially the same point differently, the First
Amendment tradition demands that the risk of speech-caused negative consequences be borne by
the entire citizenry, rather than being imposed on the speaker. 23 It is dangerous to free speech
values, it is said and so the doctrine says, to prefer being safe to being sorry; thus the doctrine
commands that here, unlike elsewhere, it is better to be sorry than safe. As should be obvious,
whether we place more importance on being safe rather than sorry-or instead, on protecting a
right to free speech that might result in our being sorry rather than safe-depends on what we take
to be the catastrophic occurrence.2 4 The idea of the precautionary principle is that, having
identified the possibility of a catastrophic occurrence-whether it be nuclear disaster,
environmental upheaval, or the loss of many important species-under conditions of uncertainty,
we should err on the side of eliminating those conditions that might possibly produce the
catastrophe. Similarly, if in the free speech context we define the catastrophe as the overthrow of
the government or a major terrorist attack, a commensurate precautionary principle would
demand that we vigilantly restrict speech in the service of guarding against the catastrophe.
Actual free speech doctrine, however, demands just the reverse. It requires us to accept the
uncertain risk of a catastrophe rather than restrict the speech that might cause it. But if we were
to define the catastrophe as the large-scale restriction of speech, 25 then we could understand
existing free speech doctrine, not as a rejection of the precautionary principle, but instead as an
embodiment of the precautionary principle-albeit with a different conception of the catastrophe
against which it is necessary, at almost all costs, to take precautions. However, we normally
think of disasters in terms of physical damage and not the impairment of individual rights, and
thus it seems more natural to think of taking precautions against a terrorist attack, unlawful
revolution, environmental catastrophe, or genetic disaster rather than precautions against
restrictions of free speech rights. And that is why it may be better to think of the First
Amendment doctrine as rejecting the precautionary principle rather than just embodying a
different one;2 6 but this is only a matter of form and not of substance. The logical structure of
the precautionary principle is indeed a reversible one, and one person's riskiness is another's
conservatism, depending on what each values most. To call the First Amendment a precautionary
principle of a different stripe is thus not to make an error. Nevertheless, to think of the First
Amendment in terms of a rejection of the precautionary principle may better capture the way in
which the First Amendment--or at least longstanding First Amendment doctrinedemands that we
accept risks of speech-caused catastrophes that, if speech were not involved, we would consider
sufficiently important to guard against.

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Free Speech mitigation policies are ineffective and spillover


to widespread academic harm.
Editorial Board. "Defending Free Speech On College Campuses." Chicago Tribune. April 04,
2016. Web. December 06, 2016.
<ttp://www.chicagotribune.com/news/opinion/editorials/ct-college-safe-spaces-sexualharassment-edit-0404-md-20160401-story.html>.
Students deserve to be shielded from sexual harassment by other students or faculty members,
and sexual harassment can include the creation of a climate so hostile (to women, gays and so
on) that they feel threatened. But the AAUP panelists contend that the federal government
defines the term so broadly, and makes it so hard to defend against such charges, that innocent
people are wrongly tarred and education suffers. "Overly broad definitions of hostile
environment harassment work at cross-purposes with the academic freedom and free speech
rights necessary to promote learning in an educational setting," they said. "Learning can be best
advanced by more free speech that encourages discussion of controversial issues rather than by
using punitive administrative and legal fiat to prevent such discussions from happening at all."

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265

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A2 Spillover AC: Free speech on campus is not reconcilable


with equality they are mutually exclusive.
Delgado, Richard. "Four Observations About Hate Speech." Wake Forest Law Review. 2009.
Web. December 06, 2016.
<http://heinonline.org/HOL/Page?handle=hein.journals/wflr44&collection=journals&id=
357&startid=&endid=374>.
With respect to the debate itself, we pointed out that the calculus of harms has been incomplete.
In particular, many scholars have failed to differentiate the harms of the many varieties of hate
speech, take note of the special case of children, ponder the importance of social power and
setting, and recognize the connection between general, nontargeted hate speech and the rise of
destructive social movements. We also noted that courts and commentators need to take note of
compounding and incessancy-the way hate speech often targets an individual who, by reason of
his or her race or physical appearance, has been the object of similar attacks many times before.
The debate about hate speech has been long and contentious in part because it requires us to
examine two of our deepest values equality and free speech-in a setting in which they are in
tension with each other. We will probably never fully solve this problem. But we can at least
appreciate its complexity and understand the role the controversy, like hate speech itself, plays in
society.

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266

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January/February 2017

A2 Spillover AC: TURN Failure to punish and restrict


hate speech results in unequal education and a degradation
of the 14th amendment.
Friedersdorf, Conor. "Free Speech On Campus Is Under Attack." The Atlantic. March 04, 2016.
Web. December 06, 2016. <http://www.theatlantic.com/politics/archive/2016/03/theglaring-evidence-that-free-speech-is-threatened-on-campus/471825/>.
The 2009 case of eleven-year-old Jaheem Herrera's suicide in Georgia, which resulted after
alleged repeated verbal bullying by his classmates,' presents an interesting question regarding
whether public schools must take action to prevent this type of behavior even if it does not
disrupt the classroom. The issue to be addressed is not what speech schools can censor but
whether schools must censor or prevent certain speech that has a harmful effect on the
educational environment for a specific student or a specifically identifiable group of students. If
a public school student has a civil or liberty right to his education,' then it may be concluded that
there is a duty imposed on the provider of that education to force students not to interfere with
that right. Arguably, that duty would require the prevention of certain speech, regardless of
whether the speech is true or otherwise traditionally protected as part of a "democratic" exchange
of ideas if its purpose or effect is harassment or verbal bullying or if it constitutes an attack on an
individual student's core characteristics.' Courts often aver in the abstract that student speech
cannot be restrained unless the speech is reasonably likely to "interfere with the work of the
school or impinge on the rights of other[s]." Is there then a right to be let alone that includes a
right to be free from verbal assaults based upon characteristics such as race, religion, or sexual
orientation? This protection presumably does not or should not include critiques of behavior,
clothing choice, values, and a right not to be offended unless the purpose of such speech is to
inflame, disrupt, or directly attack a particular student for the purpose of inflicting psychological
harm.' Whether the speech is intended to harm may be determined by analyzing the language
actually used in the context in which it is used rather than by looking solely at the idea conveyed.
Hence, both content and context are relevant for any speech analysis.

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267

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January/February 2017

A2 Spillover AC: Current Constitutional law is a horrific


system for protecting individual well being and ultimately
culminates in hostile school experiences.
Jaffe, Elizabeth M. "Bullying In Public Schools: The Intersection Between The Students Free
Speech Rights And The School." Mercer Law Review. December 11, 2012. Web.
December 06, 2016.
<http://www2.law.mercer.edu/lawreview/getfile.cfm?file=62205.pdf>.
As the individuals responsible for maintaining an environment conducive to education and
learning, "[s] chool principals have a difficult job, and a vitally important one."326 But those
principals, ever fearful of being sued, are now routinely tasked with protecting and providing a
safe learning environment while also being forced to take into account a student's First
Amendment right to free speech. Although the Supreme Court has retreated from the Tinker v.
Des Moines Independent Community School District3 27 standard of imminent disruption before
school authorities can act, it is past time for courts to explicitly recognize that school-age
children are biologically less able to control or recognize the consequences of their words and
actions than adults.32 8 Many states have laws that expressly ban bullying, including Georgia,
yet Georgia's law did not apply to Jaheem Herrera because it only applied to students in grades
six through twelve, and Herrera was in the fifth grade.3 29 Perhaps the school officials had a
responsibility to prevent the students from calling him "gay" under the holdings of Hazelwood
School District v. Kuhlmeieraso and Tinker. Yet the Judge who conducted the investigation on
behalf of DeKalb County concluded that Jaheem's suicide was not the result of wrongdoing by
the staff at Dunaire Elementary School, that Jaheem was not bullied, and that "gay" meant
"happy."33'

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268

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January/February 2017

Purposefully provoking Hate Speech is not constitutionally


protected, and does not fall under the first amendment.
A. Smolla, Rodney. "Words "Which By Their Very Utterance Inflict Injury": The Evolving
Treatment Of Inherently Dangerous." Pepperdine Law Review. March 15, 2009. Web.
December 06, 2016.
<http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1074&context=plr>.
In an opinion for the Court affirming Chaplinsky's conviction for speaking these words, Justice
Murphy wrote a paragraph that would come to be one of the single most powerful and oft-cited
passages in all of American free speech law: There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or "fighting" words-those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and
morality.'

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269

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January/February 2017

Speech that seeks to tear society apart, must be not be


extended First Amendment protections, as other rights
outweigh.
A. Smolla, Rodney. "Words "Which By Their Very Utterance Inflict Injury": The Evolving
Treatment Of Inherently Dangerous." Pepperdine Law Review. March 15, 2009. Web.
December 07, 2016.
<http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1074&context=plr>.
This is an elegant paragraph, remarkable for its efficiency. I wish to isolate for inspection Justice
Murphy's suggestion that there are words "which by their very utterance inflict injury."
Simultaneously, I wish to isolate Justice Murphy's theoretical justification that such words may
be banished from society because such classes of expression are "of such slight social value as a
step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality." 6 To the extent that Chaplinsky is understood as standing for the
proposition that speech tending to incite an immediate breach of peace is not protected by the
First Amendment, it was and is an unremarkable opinion, then and now. To the extent that
Chaplinsky stands for the broader philosophical proposition that society may in appropriate
circumstances curtail expression to deter immediate threats to order, it is equally unremarkable.
What makes Chaplinsky quite remarkable however, is the suggestion that there are occasions
when words alone may inflict injury that society may redress without abridging the guarantees of
the First Amendment, including injury to society's moral fabric. 7 It is this more profound
possibility, that expression may be regulated in the service of both order and morality, that
continues to vex free speech doctrine and theory, and renders the ongoing interpretation of
Chaplinsky worth serious investigation.

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270

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January/February 2017

Campus speech restrictions spills over to surveillance and


informant policies to further censor students.
Slater, Tom. "Terrorism And Free Speech: An Unholy Alliance Of State And Students." Unsafe
Space. 2016. Web. December 07, 2016. <http://link.springer.com/chapter/10.1007/978-1137-58786-2_10>.
So said Conservative prime minister David Cameron, in a speech made just after he was returned
to power at the 2015 UK General Election. Having spent the past five years in coalition with the
Liberal Democrats, during which Tory reforms on counterterrorism and surveillance had been
stalled by inter-party politicking, the gloves, it seemed, were coming off. Alongside beefed-up
powers to store communications, revoke passports and rescind citizenship, Cameron unveiled
plans to stem the influence of extremism on university campuses. Under Section 26 of the
Counter-Terrorism and Security Act which received Royal Assent in February 2015
universities would be required to give due regard to the need to prevent people from being
drawn into terrorism.2 In practice, this means a programme of censorship and surveillance, with
universities charged with being the moral guardians of, and informers on, their own staff and
students. In another speech, in September 2015, made just before the new conditions were to
come into place, Cameron made assurances his plans would not amount to censorship. It is not
about oppressing free speech or stifling academic freedom, he said. It is about making sure that
radical views and ideas are not given the oxygen they need to flourish.3 But anyone with a
liberal bone in their body could see through the doublespeak: the government was mandating
what students would be able to hear, read, say and think. State censorship was once again casting
a shadow over British academia, only a few months after Cameron had marched with other world
leaders on the streets of Paris in solidarity with the slain Charlie Hebdo cartoonists. This was a
long time in the coming. For decades, the Home Office has banned terrorist groups outright and
made espousing support for them, on campus or anywhere else, a criminal offence. But the
governments controversial Prevent Strategy has had a particularly insidious impact on
university campuses. Established by New Labour in 2003, as part of the counterterror CONTEST
programme, Prevent set out to strike up partnerships with public institutions and community
groups in order to stem the influence of terrorism, facilitate surveillance of at-risk individuals,
and refer potentially dangerous individuals to the governments de-radicalisation programme,
Channel.4

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January/February 2017

Attempts to define and censor radical speech leads to racial


profiling and conformity with traditional values.
Slater, Tom. "Terrorism And Free Speech: An Unholy Alliance Of State And Students." Unsafe
Space. 2016. Web. December 07, 2016. <http://link.springer.com/chapter/10.1007/978-1137-58786-2_10>.
The revamped Prevent Strategy was bad news for free speech on campus. The given definition of
non-violent extremism vocal or active opposition to fundamental British values, including
democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths
and beliefs was worryingly broad.7 In theory, expressing traditional religious beliefs or radical
political ideas could put a target on your back, and, inevitably, Muslim students would bear the
brunt of the scrutiny. For the first few years, universities obligations under Prevent were vague
and unenforced, but this all changed with the arrival of the Counter-Terrorism and Security Act.
Establishing a so-called Prevent Duty in law, it put universities counterterror responsibilities on
a firm, statutory footing. Universities were now required to tighten up external-speaker policies,
monitor their students, filter internet access, give counter-extremism training to staff and liaise
with local Prevent coordinators and the police.8

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January/February 2017

Every Free Speech concession countsGiving censorship


moral legitimacy allows the government to coopt the moral
high ground for more right erosion.
Slater, Tom. "Terrorism And Free Speech: An Unholy Alliance Of State And Students." Unsafe
Space. 2016. Web. December 07, 2016. <http://link.springer.com/chapter/10.1007/978-1137-58786-2_10>.
You could call this a question of priorities: petty, individual bans might look trifling next to
systematic state censorship. But this ignores the role UK universities and students unions have
played in setting the stage for the state to step in. Freedom of speech is an indivisible liberty, and
by making their own concessions, universities and students unions have made it near
impossible for them to argue against Prevent on the basis of principle. But the problem runs
deeper than mere double standards. Over the past few decades, campus politicos and university
bureaucrats have imbued censorship with moral legitimacy. This is the high ground that the
government is now trying to claim for itself.

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273

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January/February 2017

Now is the tipping point for Enlightenment ideals a failure


to protect will spill over to a broader collapse.
Slater, Tom. "Terrorism And Free Speech: An Unholy Alliance Of State And Students." Unsafe
Space. 2016. Web. December 07, 2016. <http://link.springer.com/chapter/10.1007/978-1137-58786-2_10>.
This retreat from Enlightenment ideas in the face of the rise of Islamist extremism is a double
tragedy. Not only is free speech being curtailed, denying us of the opportunity to challenge
extremist ideas in open debate. But this profound unravelling of Western values, at the heart of
institutions that are supposed to defend them, will only enhance the appeal of Islamist ideas. As
Bill Durodi has argued, homegrown terrorism emerges from a domestic cultural confusion in
which we are all engaged in a search for purpose and meaning due to the failure of
contemporary society to provide any coherent direction.39 As Western society has become
hollowed out, individuals are sent looking for purpose and direction. Tragically, some have
found it in the deadest of dogmas. That Islamism is flimsy, bigoted and opportunistic
exploiting grievance and identity, rather than offering an inspiring, positive vision shows just
how fragile Enlightenment values have become. The phoney war over Prevent is not only awash
with double standards it also obscures the crisis of Western society itself. At precisely the time
when the values of the Enlightenment face a profound, international challenge, a time when
debate has to be thrown open about the future direction of society, we find speech reined in and
academics unable to articulate the purpose of their own intellectual tradition. For all the wellfounded fears about state censorship, Prevent will make little difference to the state of free
speech on campus. So-called British values have already withered from within.

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January/February 2017

A2 Reverse Enforcement 2. Administrators have an interest


in not reverse enforcing hate speech rules.
Delgado, Richard. "Ten Arguments Against Hate-Speech Regulation: How Valid?." Northern
Kentucky Law Review Vol. 23. 1996. Web. December 06, 2016.
<http://heinonline.org/HOL/Page?handle=hein.journals/nkenlr23&div=32&g_sent=1&co
llection=journals>.
The same is true with reverse enforcement. Some authorities may indeed begin charging black
students with hate speech directed against whites. But the American experience with hate-speech
rules shows that this is not a major concern, nor is it in most Western countries with a liberal
tradition. If reverse enforcement occasionally happens, it is not necessarily a bad thing-if in fact
the black or Mexican has harassed or terrorized a fellow student who is white or Asian. If the
fear is that college deans and other administrative officers are so racist that they will invent or
magnify charges against minority students in order to punish or expel them from campus, this is
entirely implausible. Figures from U.S. News and World report show that college administrators
and faculty harbor less anti-black animus than the average American, even than the average
college student. Indeed, it is the very concern of campus administrators over dwindling black
numbers that underlies enactment of most hate-speech rules.

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275

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January/February 2017

AFF: Restrictions on hate speech sap energy from


meaningful efforts to critique racist views.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
First, prohibitions on hate speech may divert energy from and dampen the sense of necessity of
the more vital activity of responding expressively to and critiquing racist views. Prohibitions, to
the extent that they take overt expression of racism out of public discourse, create a danger about
which John Stuart Mill warned. Without people having the experience of responding to and
opposing expressions of misguided views, truth is in danger of becoming sterile dogma,
ineffective for good because people will have lost the ability to justify and explain the truth when
challenged.25 This point the need for any noxious doctrine that exists within a community to
be publicly expressed and then persuasively rejected was probably the underlying lessen
offered by Justice Douglas account of the discursive defeat of communism in the United States.

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276

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January/February 2017

Hate speech regulations are an attempt to legislate and


coerce virtue.
Sherry, Suzanna. "Speaking Of Virtue: A Republican Approach To University Regulation Of
Hate Speech." 75 Minn. L. Rev. 933. 1991. Web. December 07, 2016.
<http://discoverarchive.vanderbilt.edu/bitstream/handle/1803/6521/Speaking%20of%20V
irtue.pdf?sequence=1&isAllowed=y>.
The addition of hate speech regulations to many student codes of conduct which already prohibit
harassment without defining it in terms of victimized groups further illustrates that these
universities are attempting to coerce particular values rather than merely to create a civil
environment. One university currently prohibits "[p]hysically abusing, harassing, or intentionally
inflicting severe emotional distress upon a member of the university community."3 7
Nevertheless, this same university is considering a proposed additional policy condemning hate
speech, which is defined as "the use of racial epithets by a dominant group or member of a
dominant group to oppress, harass, or fluster a member of a subordinate group."' 8 In contrast, a
few universities have already recognized that civility is not dependent on iace, gender or other
similar characteristics. In response to a request for regulations "which prohibit speech that libels,
stereotypes, etc. women and members of minority groups," one university counsel provided,
without further ado, its code of student conduct: the relevant portion of that code simply
prohibits "[h]arassing, annoying or alarming another person [or] addressing abusive language
to any person."3 9 Another university apparently used the typical list of protected characteristics
only as an example: "An individual who harasses another because of his or her race, sex, sexual
orientation, ethnic background, religion, expression of opinion, or any other factor irrelevant to
participation in the free exchange of ideas" is subject to discipline.40 The actions and statements
of proponents of hate speech regulations thus demonstrate that the regulations are indeed
intended to legislate virtue, not manners. The regulations are an attempt to dictate primarily how
students (and faculty) think, and only secondarily (if at all) how they behave. As such, the
regulations are a part of the larger movement in higher education toward enforcement of a
"politically correct" orthodoxy.41 The remainder of this Essay will consider the extent to which
university attempts to coerce virtue are appropriate in a republican polity.
*Ellipsis from source

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January/February 2017

Universities cannot inculcate virtue, it is not part of their


form.
Sherry, Suzanna. "Speaking Of Virtue: A Republican Approach To University Regulation Of
Hate Speech." 75 Minn. L. Rev. 933. 1991. Web. December 07, 2016.
<http://discoverarchive.vanderbilt.edu/bitstream/handle/1803/6521/Speaking%20of%20V
irtue.pdf?sequence=1&isAllowed=y>.
Even assuming, however, that value inculcation is a legitimate function of primary and
secondary schools, that does not necessarily mean that it is legitimate at the university level.
Although one purpose of primary and secondary education is the transmission of societal values,
the main purpose of a university is the search for knowledge. University students and faculty
participate together in a disinterested search for truth.41 For that reason, any coercive
curtailment of unpopular viewpoints in the name of virtue is inconsistent with the very
foundation of a university education. One scholar has insightfully captured the essence of this
inconsistency: A school cannot ban the Students for a Democratic Society from campus because
it disagrees with or fears its social goals, but it can ban fraternities if it views them as trivial and
anti-intellectual. This distinction is valuable, because it permits a college to make choices that
promote educational values while deterring sectarian exclusivity.48 Moreover, even if value
inculcation is one legitimate function of a university, it cannot be permitted in this context
because it conflicts with the more important function of critical analysis.49

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January/February 2017

Coercing virtues through the university is specifically bound


to fail, because it refuses a true acknowledgement of social
responsibility.
Sherry, Suzanna. "Speaking Of Virtue: A Republican Approach To University Regulation Of
Hate Speech." 75 Minn. L. Rev. 933. 1991. Web. December 07, 2016.
<http://discoverarchive.vanderbilt.edu/bitstream/handle/1803/6521/Speaking%20of%20V
irtue.pdf?sequence=1&isAllowed=y>.
Finally, even if the most important university function is value transmissionwhich would be a
sad commentary on the state of American universitiesusing coercive methods in an attempt to
inculcate virtue in young adults is bound to fail. Most studies suggest that civics courses and
other attempts to inculcate civic virtue are unsuccessful, even at the high school level, because
students have already acquired a nearly unalterable belief system.50 Only teaching critical
thinking might induce them to change their minds. 51 Hate speech regulations, by suppressing or
eliminating the need for critical thought about crucial social issues, undermine even this
possibility. Moreover, enforcing virtuous behavior reduces the likelihood of producing truly
virtuous citizens, because virtue requires taking responsibility for one's actions, and taking
responsibility requires choice.5 2 Finally, coercing tolerance of cultural diversitythe stated goal
of many hate speech regulationsis especially difficult: as one author has noted, "you cannot
indoctrinate for pluralism."53

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January/February 2017

Public institutions can never coerce individuals in order to


inculcate virtue.
Sherry, Suzanna. "Speaking Of Virtue: A Republican Approach To University Regulation Of
Hate Speech." 75 Minn. L. Rev. 933. 1991. Web. December 07, 2016.
<http://discoverarchive.vanderbilt.edu/bitstream/handle/1803/6521/Speaking%20of%20V
irtue.pdf?sequence=1&isAllowed=y>.
I must begin by drawing a distinction between virtue and manners. Virtuein particular, the civic
virtue that is the basis for a republican polityis an internal state of mind. Certainly virtue is
reflected in outward behavior, but true virtue must come from within. To be virtuous, a citizen
must share the values that make for good citizenship. In other words, to label a person as
virtuous is to ascribe to her not only certain behaviors, but certain beliefs. One cannot be virtuous
unless one subscribes to the normative underpinnings of virtue. Good manners, on the other
hand, require only that a person behave in a particular way. Mannerly behavior does not
implicate a corresponding set of beliefs (except, of course, the tautologous belief that one ought
to behave with good manners). This is not to say that the definition of good manners cannot vary;
it is only to point out that one can behave in a way that others define as mannerly without
necessarily subscribing to the definition. One important consequence of this distinction between
virtue and manners is that only manners can be coerced.5 A government can enforce outward
behavior, but compelling people to behave in the way that a virtuous person would behave
cannot make people virtuous. Imagine legislation designed to coerce a form of civic virtue from
the citizenry. A law states that every person must vote. I do so, but because I am not truly a
virtuous person, I vote unwisely. I might vote at random or perhaps for those whose names are
pleasing to my ear. Indeed, if I am so unvirtuous as to be reluctant to vote, I may react to
government coercion by refusing even to consider voting seriously. The government cannot
compel me to make virtuous choices without depriving me of choice altogether by telling me
who to vote for. Until I have acquired the internal habit of deliberately and thoughtfully choosing
who will represent me, I cannot be said to be virtuous.

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January/February 2017

A2 Racism: A firm criticism of hate speech on the individual


level glosses over institutional racismone shot fix policies
simply allow that to continue.
Gale Group. "Hate Speech Codes Will Not End Racism And Hate Crimes." Opposing
Viewpoints in Context. 2007. Web. December 08, 2016.
<http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?zid=
da108d69995a5a10a4718835fd943d2f&action=2&catId=&documentId=GALE%7CEJ30
10196217&userGroupName=new11178&jsid=c0d42c9e3c09d9de7267a76c0f47bb22>.
Secondly, hate speech codes reinforce the common tendency to view racism on the purely
individual levelas a personality problem in need of adjustment, or at least censureas
opposed to an institutional arrangement, whereby colleges, workplaces and society at large
manifest racial inequity of treatment and opportunity, often without any bigotry whatsoever. So,
for example, racial inequity in the job market is perpetuated not only, or even mostly by overt
racismthough that too is still far too commonbut rather by way of the "old boy's networks,"
whereby mostly white, middle class and above, and male networks of friends, neighbors and
associates pass along information about job openings to one another. And this they do, not
because they seek to deliberately keep others out, but simply because those are the people they
know, live around, and consider their friends. The result, of course, is that people of color and
women of all colors remain locked out of full opportunity.

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January/February 2017

A2 Hate DA Solvency: Hate speech is so difficult to track


and prosecute, that it is rarely pursued to the end.
Wasson, Mark. "Administration Struggles To Respond To Anonymous Reports Of Hate Speech
On Campus." City College News. December 08, 2016. Web. December 08, 2016.
<http://citycollegenews.com/2016/12/08/administration-struggles-to-respond-toanonymous-reports-of-hate-speech-on-campus/>.
According to Jacqueline Roosevelt, Director of Policy and Legislative Affairs in the Student
Senate, nine students have reported incidents of hate speech with one of them being a direct
threat that the student should, Go back to [their] country or something bad will happen. So far,
with the exception of the faculty member who reported the incident to the Minneapolis Police
Department, the alleged victims have decided to stay anonymous, refusing to speak with law
enforcement, MCTC administration or City College News in the fear that possible retaliation
could be worse than the hate speech they endured. This silence brought on by fear creates a
problem when it comes to a solution from the MCTC administration and law enforcement. In
response to being told of the unreported hate speech incidents, Lt. Christopher House,
Minneapolis Police Department liaison to MCTC, said that he hasnt heard of an uptick in hate
crimes and Its tough to police by rumor. Efforts to urge the student body to report hate speech
through proper channels have been highlighted by Dr. Williams in multiple emails sent to
students and faculty, but that even those that are reported face an uphill climb because So many
things come to me that are veiled in their intention. However, when those incidents are reported
through proper channels, the action taken is swift. Dr. Williams, Matthew Crawford, the Dean of
Enrollment, Patrick Troup, Interim Vice President of Student Affairs and Curt Schmidt, the
Director of Public Safety met with the alleged victim and two employee divisions about how to
keep employees safe. A picture of Brown along with his name was posted in the office area
where the alleged incident happened and Public Safety made Brown sign a trespassing notice.
According to Dr. Williams, its really hard to quantify any numbers [regarding hate speech]
because of the fear of the retaliation and We strugglewe have our challenges but we need to
focus on what we can do.

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Lincoln-Douglas Brief

Evidence for the


Negative

NEG: Balancing Test NC



January/February 2017

Balancing Test NC


This NC is effective because it applies to every affirmative. No matter the affs goal,
which they claim free speech achieves, your central argument is that sometimes-free speech will
have to be curtailed to achieve that goal. The more particular argument youd make is that
universities have core purposes for which they may sometimes allow or restrict speech. Since the
affirmative has to argue in favor of having no restrictions, the negative wins by proving that
there are exceptions to the rule.
The best framework for this NC is one that argues that notions of good or bad,
right and wrong, are dependent on the characteristics and purposes of an actor. This way,
you can take for granted whatever purposes a university has established (the most obvious being
education) without appealing to some foundational reason why restrictions are necessary. To
bolster your case, you should argue (as Stanley Fish does in his piece on free speech) that
restrictions/limitations are constitutive of speech itself, and that speech can only be valuable so
far as there are some limits which define what speech is valuable and what speech isnt.
The best affirmative answer to this case is that the university is a marketplace of ideas.
All of a universitys purposes are thwarted if they fail to allow for free and open dialogue in all
circumstances. The only universities whose mission statements contain core moral beliefs, which
might justify restrictions, are privately-funded, religious institutionsand the resolution is about
public colleges. So, the negative will have to explain why public institutions must also limit
speech to achieve their purposes. This is where you could incorporate the hate speech debate into
your NC.

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284

NEG: Balancing Test NC

January/February 2017

Free speech is politicized--it has no natural content. That


means it'll get co-opted to serve ends contrary to the
affirmative's values.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
Lately, many on the liberal and progressive left have been disconcerted to find that words,
phrases, and concepts thought to be their property and generative of their politics have been
appropriated by the forces of neoconservatism. This is particularly true of the concept of free
speech, for in recent years First Amendment rhetoric has been used to justify policies and actions
the left finds problematical if not abhorrent: pornography, sexist language, campus hate speech.
How has this happened? The answer I shall give in this essay is that abstract concepts like free
speech do not have any natural content but are filled with whatever content and direction one
can manage to put into them. Free speech is just the name we give to verbal behavior that
serves the substantive agendas we wish to advance; and we give our preferred verbal behaviors
that name when we can, when we have the power to do so, because in the rhetoric of American
life, the label free speech is the one you want your favorites to wear. Free speech, in short, is
not an independent value but a political prize, and if that prize has been captured by a politics
opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an
obstacle to those purposes. This is something that the liberal left has yet to understand, and what
follows is an attempt to pry its members loose from a vocabulary that may now be a disservice to
them.

Champion Briefs

285

NEG: Balancing Test NC

January/February 2017

Free speech is not valuable in and of itself--it depends on


some ultimate purpose for its value.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
I want to say that all affirmations of freedom of expression are like Miltons, dependent for their
force on an exception that literally carves out the space in which expression can then emerge. I
do not mean that expression (saying something) is a realm whose integrity is sometimes
compromised by certain restrictions but that restriction, in the form of an underlying articulation
of the world that necessarily (if silently) negates alternatively possible articulations, is
constitutive of expression. Without restriction, without an inbuilt sense of what it would be
meaningless to say or wrong to say, there could be no assertion and no reason for asserting it.
The exception to unregulated expression is not a negative restriction but a positive hollowing out
of valuewe are for this, which means we are against thatin relation to which meaningful
assertion can then occur. It is in reference to that valueconstituted as all values are by an act of
exclusionthat some forms of speech will be heard as (quite literally) intolerable. Speech, in
short, is never a value in and of itself but is always produced within the precincts of some
assumed conception of the good to which it must yield in the vent of conflict. When the pinch
comes (and sooner or later it will always come) and the institution (be it church, state, or
university) is confronted by behavior subversive of its core rationale, it will respond by declaring
of course we mean not tolerated ------, that we extirpate, not because an exception to a general
freedom has suddenly and contradictorily been announced, but because the freedom has never
been general and has always been understood against the background of an ordinary exclusion
that gives it meaning.

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286

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January/February 2017

Free speech can't be intrinsically valuable--it relies on an


ulterior purpose--sooner or later we'll have to restrict forms
of speech that undermine said purpose.
Fish, Stanley. "Theres No Such Thing As Free Speech and Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
But if this is the case, a First Amendment purist might reply, why not drop the charade along
with the malleable distinctions that make it possible, and declare up front that total freedom of
speech is our primary value and trumps anything else, no matter what? The answer is that
freedom of expression would only be a primary value if it didnt matter what was said, didnt
matter in the sense that no one gave a damn but just liked to hear talk. There are contexts like
that, a Hyde Park corner or a call-in talk show where people get to sound off for the sheer fun of
it. These, however, are special contexts, artificially bounded spaces designed to assure that
talking is not taken seriously. In ordinary contexts, talk is produced with the goal of trying to
move the world in one direction rather than another. In these contextsthe contexts of everyday
lifeyou go to the trouble of asserting that X is Y only because you suspect that some people
are wrongly asserting that X is Z or that X doesnt exist. You assert, in short, because you give a
damn, not about assertionas if it were a value in and of itselfbut about what your assertion is
about. It may seem paradoxical, but free expression could only be a primary value if what you
are valuing is the right to make noise; but if you are engaged in some purposive activity in the
course of which speech happens to be produced, sooner or later you will come to a point when
you decide that some forms of speech do not further but endanger that purpose.

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287

NEG: Balancing Test NC

January/February 2017

Colleges and universities have the right to restrict speech to


achieve their substantive purposes.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.

Take the case of universities and colleges. Could it be the purpose of such places to encourage
free expression? If the answer were yes, it would be hard to say why there would be any need
for classes, or examinations, or departments, or disciplines, or libraries, since freedom of
expression requires nothing but a soapbox or an open telephone line. The very fact of the
universitys machineryof the events, rituals, and procedures that fill its calendarargues for
some other, more substantive purpose. In relation to that purpose (which will be realized
differently in different kinds of institutions), the flourishing of free expression will in almost all
circumstances be an obvious good; but in some circumstances, freedom of expression may pose
a threat to that purpose, and at that point it may be necessary to discipline or regulate speech,
lest, to paraphrase Milton, the institution sacrifice itself to one of its accidental features.

Champion Briefs

288

NEG: Balancing Test NC

January/February 2017

Colleges and universities don't exist independently of any


purpose--it's within their rights to preserve their basic tenets
and restrict speech.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. December 09, 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
Interestingly enough, the same conclusion is reached (inadvertently) by Congressman Henry
Hyde, who is addressing these very issues in a recently offered amendment to Title VI of the
Civil Rights Act. The first section of the amendment states its purpose, to protect the free
speech rights of college students by prohibiting private as well as public educational institutions
from subjecting any students to disciplinary sanctions solely on the basis of conduct that is
speech. The second section enumerates the remedies available to students whose speech rights
may have been abridged; and the third, which is to my mind the nub of the matter, declares as an
exception to the amendments jurisdiction any educational institution that is controlled by a
religious organization, on the reasoning that the application of the amendment to such
institutions would not be consistent with the religious tenets of such organizations. In effect,
what Congressman Hyde is saying is that at the heart of these colleges and universities is a set of
beliefs, and it would be wrong to require them to tolerate behavior, including speech behavior,
inimical to those beliefs. But insofar as this logic is persuasive, it applies across the board, for all
educational institutions rest on some set of beliefsno institution is just there independent of
any purposeand it is hard to see why the rights of an institution to protect and preserve its
basic tenets should be restricted only to those that are religiously controlled. Read strongly, the
third section of the amendment undoes sections one and twothe exception becomes, as it
always was, the ruleand points us to a balancing test very much like that employed in
Canadian law: given that any college or university is informed by a core rationale, an
administrator faced with complaints about offensive speech should ask whether damage to the
core would be greater if the speech were tolerated or regulated.

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289

NEG: Balancing Test NC

January/February 2017

Limitations are necessary to give speech value in the first


place.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
Indeed, limitations is the wrong word because it suggests that expression, as an activity and a
value, has a pure form that is always in danger of being compromised by the urgings of special
interest communities; but independently of a community context informed by interest (that is,
purpose), expression would be at once inconceivable and unintelligible. Rather than being a
value that is threatened by limitations and constraints, expression, in any form worth worrying
about, is a product of limitations and constraints, of the already-in-place presuppositions that
give assertions their very particular point. Indeed, the very act of thinking of something to say
(whether or not it is subsequently regulated) is already constrainedrendered impure, and
because impure, communicableby the background context within which the thought takes its
shape. (The analysis holds too for freedom, which in Schmidts vision is an entirely empty
concept referring to an urge without direction. But like expression, freedom is a coherent notion
only in relation to a goal or good that limits and, by limiting, shapes its exercise.)

Champion Briefs

290

NEG: Balancing Test NC

January/February 2017

The Aff relies on the fiction of harmless speech.


Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
Arguments like Schmidts only get their purchase by first imaging speech as occurring in no
context whatsoever, and then stripping particular speech acts of the properties conferred on them
by contexts. The trick is nicely illustrated when Schmidt urges protection for speech no matter
how obnoxious in content. Obnoxious at once acknowledges the reality of speech-related
harms and trivializes them by suggesting that they are surface injuries that any large-minded
(liberated and humane) person should be able to bear. The possibility that speech-related
injuries may be grievous and deeply wounding is carefully kept out of sight, and because it is
kept out of sight, the fiction of a world of weightless verbal exchange can be maintained, at least
within the confines of Schmidts carefully denatured discourse.

Champion Briefs

291

NEG: Balancing Test NC

January/February 2017

Free speech is politicized.


Fish, Stanley. "Theres No Such Thing As Free Speech and Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
I find both strategies unpersuasive, but my own skepticism concerning them is less important
than the fact that in general they seem to have worked; in the parlance of the marketplace (a
parlance First Amendment commentators love), many in the society seemed to have bought
them. Why? The answer, I think, is that people cling to First Amendment pieties because they do
not wish to face what they correctly take to be the alternative. That alternative is politics, the
realization (at which I have already hinted) that decisions about what is and is not protected in
the realm of expression will rest not on principle or firm doctrine but on the ability of one
persons to interpretrecharacterize or rewriteprinciple and doctrine in ways that lead to the
protection of speech they want heard and the regulation of speech they want heard and the
regulation of speech they want silenced. (That is how George Bush can argue for flag-burning
statutes and against campus hate-speech codes.) When the First Amendment is successfully
invoked, the result is not a victory for free speech in the face of a challenge from politics but a
political victory won by the party that has managed to wrap its agenda in the mantle of free
speech. It is from just such a conclusiona conclusion that would put politics inside the First
Amendmentthat commentators recoil, saying things like This could render the First
Amendment a dead letter, or This would leave us with no normative guidance in determining
when and what speech to protect, or This effaces the distinction between speech and action,
or This is incompatible with any viable notion of freedom of expression. To these statements
(culled more or less at random from recent law review pieces) I would reply that the First
Amendments has always been a dead letter if one understood its liveness to depend on the
identification and protection of a realm of mere expression distinct from the realm of
regulatable conduct; the distinction between speech and action has always been effaced in
principle, although in practice it can take whatever form the prevailing political conditions
mandate; we have never had any normative guidance for marking off protected from unprotected
speech; rather, the guidance we have has been fashioned (and refashioned) in the very political
struggles over which it then (for a time) presides. In short, the name of the game has always been
politics, even when (indeed, especially when) it is played by stigmatizing politics as the area to
be avoided.

Champion Briefs

292

NEG: Balancing Test NC

January/February 2017

Appeals to the First Amendment aren't inherently wrong,


but the First Amendment is not always the appropriate
reference point.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
Let me be clear. I am not saying that First Amendment principles are inherently bad (they are
inherently nothing), only that they are not always the appropriate reference point for situations
involving the production of speech, and that even when they are the appropriate reference point,
they do not constitute a politics-free perspective because the shape in which they are invoked
will always be political, will always, that is, be the result of having drawn the relevant line
(between speech and action, or between high-value speech and low-value speech, or between
words essential to the expression of ideas and fighting words) in a way that is favorable to some
interests and indifferent or hostile to others. This having been said, the moral is not that First
Amendment talk should be abandoned, for even if the standard First Amendment formulas do
not and could not perform the function expected of them (the elimination of political
considerations in decisions about speech), they still serve a function that is not at all negligible:
they slow down outcomes in an area in which the fear of overhasty outcomes is justified by a
long record of abuses of power. It is often said that history shows (itself a formula) that even a
minimal restriction on the right of expression too easily leads to ever-larger restrictions; and to
the extent that this is an empirical fact (and it is a question one could debate), there is some
comfort and protection to be found in a procedure that requires you to jump through hoopsdo a
lot of argumentative workbefore a speech regulation will be allowed to stand.

Champion Briefs

293

NEG: Balancing Test NC

January/February 2017

First Amendment jurisprudence is inherently self-defeating.


This doesn't mean speech is never valuable, but that we can't
insulate speech from risk by expecting it to be safeguarded
constitutionally.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
It is a counsel that follows from the thesis that there is no such thing as free speech, which is not,
after all, a thesis as startling or corrosive as may first have seemed. It merely says that there is no
class of utterances separable from the world of conduct and that therefore the identification of
some utterances as members of that nonexistent class will always be evidence that a political line
has been drawn rather than a line that denies politics entry into the forum of public discourse. It
is the job of the First Amendment to mark out an area in which competing view can be
considered without state interference; but if the very marking out of that area is itself an
interference (as it always will be), First Amendment jurisprudence is inevitably self-defeating
and subversive of its own aspirations. Thats the bad news. The good news is that precisely
because speech is never free in the two senses requiredfree of consequences and free from
state pressurespeech always matters, is always doing work; because everything we say
impinges on the world in ways indistinguishable from the effects of physical action, we must
take responsibility for our verbal performancesall of themand not assume that they are being
taken care of by a clause in the Constitution. Of course, with responsibility comes risks, but they
have always been risks, and no doctrine of free speech has ever insulated us from them. They are
the risks, respectively, of permitting speech that does obvious harm and of shutting off speech in
ways that might deny us the benefit of Joyces Ulysses or Lawrences Lady Chatterlys Lover or
Titians paintings. Nothing, I repeat, can insulate us from those risks. (If there is no normative
guidance in determining what is artlike free speech a category that includes everything and
nothingand what is obscenity.) Moreover, nothing can provide us with a principle for deciding
which risk in the long run is the best to take. I am persuaded at the present moment, right now,
the risk of not attending to hate speech is greater than the risk that by regulating it we will
deprive ourselves of valuable voices and insights or slide down the slippery slope toward
tyranny. This is a judgment for which I can offer reasons but no guarantees. All I am saying is
that the judgments of those who would come down on the other side carry no guarantees either.
They urge us to put our faith in apolitical abstractions, but the abstractions they invokethe
marketplace of ideas, speech alone, speech itselfonly come in political guises, and therefore in
trusting to them we fall (unwittingly) under the sway of the very forces we wish to keep at bay. It
is not that there are no choices to make or means of making them; it is just that the choices as
well as the means are inextricable from the din and confusion of partisan struggle. There is no
safe place.

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294

NEG: Balancing Test NC

January/February 2017

Free speech is conceptually impossible--ideological


constraints are constitutive of speech.
Fish, Stanley. "Theres No Such Thing As Free Speech And Its A Good Thing Too." Oxford
University Press. 1994. Web. December 07, 2016.
<https://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf>.
When a shorter version of this essay was first published, it drew a number of indignant letters
from readers who took me to be making a recommendation: lets abandon principles, or lets
dispense with an open mind. But, in fact, I am not making a recommendation but declaring what
I take to be an unavoidable truth. That truth is not that freedom of speech should be abridged but
that freedom of speech is a conceptual impossibility because the conditions of speechs being
free in the first place is unrealizable. That condition corresponds to the hope, represented by the
often-invoked marketplace of ideas, that we can fashion a forum in which ideas can be
considered independently of political and ideological constraint. My point, not engaged by the
letters, is that constraint of an ideological kind is generative of speech and that therefore the very
intelligibility of speech (as assertion rather than noise) is radically dependent on what freespeech ideologues would push away. Absent some already-in-place and (fore the time being)
unquestioned ideological vision, the act of speaking would make no sense, because it would not
be resonating against any background understanding of the possible courses of physical or verbal
actions and their possible consequences. Nor is that background accessible to the speaker it
constrains; it is not an object of his or her critical self-consciousness; rather, it constitutes the
field in which consciousness occurs, and therefore the productions of consciousness, and
specifically speech, will always be political (that is, angled) in ways the speaker cannot know.

Champion Briefs

295

NEG: Balancing Test NC

January/February 2017

Universities have the right to restrict speech--students can


always choose colleges with more speech protections.
Posner, Eric. "Universities Are Rightand Within Their Rightsto Crack Down On Speech
And Behavior." Slate. February 12, 2015. Web. December 07, 2016.
<http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/02/universit
y_speech_codes_students_are_children_who_must_be_protected.html>.
Most of the debate about speech codes, which frequently prohibit students from making
offensive comments to one another, concerns speech outside of class. Two points should be
made. First, students who are unhappy with the codes and values on campus can take their views
to forums outside of campusto the town square, for example. The campus is an extension of
the classroom, and so while the restrictions in the classroom are enforced less vigorously, the
underlying pedagogical objective of avoiding intimidation remains intact Second, and more
importantat least for libertarians partisans of the free marketthe universities are simply
catering to demand in the marketplace for education. While critics sometimes give the
impression that lefty professors and clueless administrators originated the speech and sex codes,
the truth is that universities adopted them because thats what most students want. If students
want to learn biology and art history in an environment where they neednt worry about being
offended or raped, why shouldnt they? As long as universities are free to choose whatever rules
they want, students with different views can sort themselves into universities with different rules.
Indeed, students who want the greatest speech protections can attend public universities, which
(unlike private universities) are governed by the First Amendment. Libertarians might reflect on
the irony that the private market, in which they normally put faith, reflects a preference among
students for speech restrictions.

Champion Briefs

296

NEG: Balancing Test NC

January/February 2017

College students don't get their education through free and


open debate--they get it from teachers who control the
content--means pedagogical ends precede speech.
Posner, Eric. "Universities Are Rightand Within Their Rightsto Crack Down On Speech
And Behavior." Slate. February 12, 2015. Web. December 07, 2016.
<http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/02/universit
y_speech_codes_students_are_children_who_must_be_protected.html>.
Lately, a moral panic about speech and sexual activity in universities has reached a crescendo.
Universities have strengthened rules prohibiting offensive speech typically targeted at racial,
ethnic, and sexual minorities; taken it upon themselves to issue trigger warnings to students
when courses offer content that might upset them; banned sexual acts that fall short of rape under
criminal law but are on the borderline of coercion; and limited due process protections of
students accused of violating these rules. Most liberals celebrate these developments, yet with a
certain uneasiness. Few of them want to apply these protections to society at large. Conservatives
and libertarians are up in arms. They see these rules as an assault on free speech and individual
liberty. They think universities are treating students like children. And they are right. But they
have also not considered that the justification for these policies may lie hidden in plain sight: that
students are children. Not in terms of age, but in terms of maturity. Even in college, they must be
protected like children while being prepared to be adults. There is a popular, romantic notion that
students receive their university education through free and open debate about the issues of the
day. Nothing could be farther from the truth. Students who enter college know hardly anything at
allthats why they need an education. Classroom teachers know students wont learn anything
if they blab on about their opinions. Teachers are dictators who carefully control what students
say to one another. Its not just that sincere expressions of opinion about same-sex marriage or
campaign finance reform are out of place in chemistry and math class. They are out of place even
in philosophy and politics classes, where the goal is to educate students (usually about academic
texts and theories), not to listen to them spout off. And while professors sometimes believe there
is pedagogical value in allowing students to express their political opinions in the context of
some text, professors (or at least, good professors) carefully manipulate their students so that the
discussion serves pedagogical ends.

Champion Briefs

297

NEG: Balancing Test NC

January/February 2017

Speech codes are key to treating college students as they are:


children.
Posner, Eric. "Universities Are Rightand Within Their Rightsto Crack Down On Speech
And Behavior." Slate. February 12, 2015. Web. December 07, 2016.
<http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/02/universit
y_speech_codes_students_are_children_who_must_be_protected.html>.
And this brings me to the most important overlooked fact about speech and sex code debates.
Society seems to be moving the age of majority from 18 to 21 or 22. We are increasingly treating
college-age students as quasi-children who need protection from some of lifes harsh realities
while they complete the larval stage of their lives. Many critics of these codes discern this
transformation but misinterpret it. They complain that universities are treating adults like
children. The problem is that universities have been treating children like adults. A lot of the
controversies about campus life become clearer from this perspective. Youngsters do dumb
things. They suffer from lack of impulse control. They fail to say no to a sexual encounter they
do not want, or they misinterpret a no as yes, or in public debate they undermine their own
arguments by being needlessly offensive. Scientific research confirms that brain development
continues well into a persons 20s. High schools are accustomed to dealing with the cognitive
limitations of their charges. They see their mission as advancing the autonomy of students rather
than assuming that it is already in place. They socialize as well as educate children to act civilly
by punishing them if they dont. Universities have gradually realized that they must take the
same approach to college students. One naturally wonders why this has become necessary.
Perhaps overprogrammed children engineered to the specifications of college admissions offices
no longer experience the risks and challenges that breed maturity. Or maybe in our ever-more
technologically advanced society, the responsibilities of adulthood must be delayed until the
completion of a more extended period of education. Yet college students have not always
enjoyed so much autonomy. The modern freedoms of college students date back only to the
1960s, when a wave of anti-authoritarianism, inspired by the Vietnam War and the civil rights
movement, swept away strict campus codes in an era of single-sex dorms. The modern speech
and sex codes have surfaced as those waters recede back to sea. What is most interesting is that
this reaction comes not from parents and administrators, but from students themselves, who,
apparently recognizing that their parents and schools have not fully prepared them for
independence, want universities to resume their traditional role in loco parentis. If all this is true,
then maybe we can declare a truce in the culture wars over education. If college students are
children, then they should be protected like children. Libertarians should take heart that the
market in private education offers students a diverse assortment of ideological cultures in which
they can be indoctrinated. Conservatives should rejoice that moral instruction and social control
have been reintroduced to the universities after a 40-year drought. Both groups should be pleased
that students are kept from harms way, and kept from doing harm, until they are ready to accept
the responsibilities of adults.

Champion Briefs

298

NEG: Balancing Test NC

January/February 2017

Free speech isn't absolute--it necessitates a balancing test.


Powers, David. "The Constitutional Implications Of Expenditure Limits In Student Government
Elections." College Student Affairs Journal. January 01, 2009. Web. December 07, 2016.
<https://www.questia.com/library/journal/1P3-1965539011/the-constitutionalimplications-of-expenditure-limits>.
The first amendment to the United States Constitution protects the right of free speech. Of
course, this freedom is not absolute. This is particularly true on college campuses. The U.S.
Supreme Court has held that universities and colleges have the right to control activity which
may be detrimental to the sacred provision of higher education (Willis, 1997). Further,
universities have a right to make academic judgments as how to best allocate scarce resources
[and] to determine for itself on academic grounds who may teach, what may be taught, how it
shall be taught, and who may be admitted to study (Widmar v. Vincent, 1981, p. 276). Because
these right sometimes conflict, the courts must seek to balance them with one another.

Champion Briefs

299

NEG: Ban Hate Speech CP




January/February 2017

Ban Hate Speech CP

The Ban Hate Speech CP will be a great and fast strategy against virtually every
affirmative. The Ban Hate Speech CP is exactly what it sounds. Additionally, there are plenty of
solvency advocates for this because the majority of the international community has banned or
has severe restrictions on hate speech. The topic literature on this is plentiful and most of it
applies directly to universities and colleges.
This counterplan is competitive textually because you cannot ban hate speech (which is
constitutionally protected) and not ban free speech; this is because hate speech is considered to
be free speech. Another way to make this CP competitive will be to read the Hate Speech DA
alongside of it (cards necessary for the DA are included). This CP/DA combo can be used as a
turn to structural violence, human dignity, or autonomy ACs. Because it can function directly
under the framework of most affirmative cases, there is no need to read your own framework
with it. One affirmative to be careful reading this against is the legalism AC because they will
likely argue that hate speech is legal so it is fine in context of their framework.
This case can be very efficient as it can be read as one card with a solvency mechanism.
This is because it is textually competitive like talked about above. It can also be beefed up and
used as a full strategy against the affirmative. When reading this, remember to include a card (or
at least have it on hand) that says that hate speech is constitutionally protected. This will avoid
the perm debate on the CP (these cards have been included in this file as well).

Champion Briefs

300

NEG: Ban Hate Speech CP

January/February 2017

A2 Hate Speech DA: Prohibition of Hate Speech increases


the underlying attitudes by increasing the haters sense of
exclusion.
Baker, Edwin. "Hate Speech." Penn Law: Legal Scholarship Repository. March 06, 2008. Web.
December 05, 2016. <http://scholarship.law.upenn.edu/faculty_scholarship/198/>.
Third, speech prohibitions can increase (or create) racist individuals or groups sense of
oppression and, thereby, their rage and belief that they must act. There is an empirical issue of
whether prohibitions on racist speech do more to prevent than to fan the development of racist
attitudes. I only speculate here, but I suggest that the causes are deeper and the prohibitions may
do little. If this suggestion is right, the primary immediate effect of the speech prohibition may
be simply to suppress (or to attempt to suppress) peoples expression of their racist views. The
primary dynamic consequence of suppression is to outrage and alienate those suppressed. They
reasonably experience the majority (that is, those who back the law) and the legal order as
specifically denying their basic rights, their right to express their truthfully held views in the
public sphere (or in whatever contexts the specific law applies) while everyone else has this
freedom. For this reason, they may conclude, they can no longer accord allegiance to (or view as
legitimate) this legal order. That is, the prohibition is likely to increase the virulence of their
views and their self-understanding of being treated unjustly by a legal order that they see as
coddling those whom they despise. Under these conditions, those whose speech the prohibitions
make illegal are likely to feel more increasingly justified in using any means including violent
or illegal means to pursue their values. Essentially, this is the point of Thomas Emersons
fourth, often neglected reason to protect free speech.27 Speech freedom, he argues, helps create a
balance between stability and change, which reduces the likelihood that pent-up anger, when
almost inevitably it eventually expresses itself, will be expressed with irrational violence. The
prediction is that even if speech prohibitions decrease the short term level of expression of the
forbidden views, they will increase the likelihood that those views will periodically be expressed
by violent outbreaks.

Champion Briefs

301

NEG: Ban Hate Speech CP

January/February 2017

A2 Legal prohibitions of hate speech ruin platforms to fight


hate speech from.
Baker, Edwin. "Hate Speech." Penn Law: Legal Scholarship Repository. March 06, 2008. Web.
December 05, 2016. <http://scholarship.law.upenn.edu/faculty_scholarship/198/>.
As an empirical hypothesis, I suggest that more active (and thus more effective) opposition to
racist views is likely to come from social practices of not tolerating racist expression than from
laws making it illegal. People in positions of power or authority do and should lose their
influence, and often even their position of authority, for public or exposed private racist
expression. Society should be and apparently is prepared to maintain strong social norms
rejecting racist viewpoints. I fear, however, that such social practices would be weakened by, and
even replaced by laws prohibiting racist expression. Legal prosecutions focus on the wrong
issues legal requirements, legal line drawing, propriety of prosecution of this rather than other
cases. In any minimally decent society that legally permits hate speech, such expression of hate
reflexively creates, for those who object to racism, a platform to explain and justify their
objections. This expressive activity may provide the greatest safeguard against racist cultures and
polities. In contrast, repression creates a platform for racists to claim victim-hood and to appeal
to the many who value liberty to oppose the suppression of their freedom, shearing off the
energy of a significant group from the chorus that condemns the racist views.

Champion Briefs

302

NEG: Ban Hate Speech CP

January/February 2017

A2 Ban Hate Speech CP- Bans force hate speech


underground, undermines coalitions against racist attitudes.
Baker, Edwin. "Hate Speech." Penn Law: Legal Scholarship Repository. March 06, 2008. Web.
December 05, 2016. <http://scholarship.law.upenn.edu/faculty_scholarship/198/>.
Second is a closely related point. By causing racism to (largely) go underground, speech
prohibitions are likely to obscure the extent of the problem and the location or the human or
social carriers of the problem, thereby reducing both the perceived necessity and the likely
effectiveness of opposition to racism. My experience has been that among those people who are
likely targets of hate speech but who still favor free speech, the reason most often given for
favoring speech is the advantage of knowing the enemy. Knowledge of the existence, views,
and, importantly, the identity of those with racist attitudes increases the capacity of those
potentially subject to racist harms to protect themselves and to make meaningful rhetorical,
strategic, political and legal responses.

Champion Briefs

303

NEG: Ban Hate Speech CP

January/February 2017

Banning Hate Speech only makes sense in context of how it


affects others in society.
Simpson, Robert. "Dignity, Harm, And Hate Speech." Law and Philosophy. November 01, 2013.
Web. December 05, 2016. <http://link.springer.com/article/10.1007/s10982-012-9164-z>.
So far as this is our situation, I believe the way forward is to assess the case for restricting hate
speech under a harm-prevention paradigm. This is because no other candidate rationale for
restricting hate speech becomes compelling until we have established that hate speech inflicts
harm on its targets. We can take it as a given that hate speech is morally benighted and (often)
profoundly offensive. But if that is all we can say about the adverse character and effects of hate
speech, the other putative rationales for its restrictions seem relatively tenuous. We may allow (i)
that it is wrong to behave rudely, (ii) that reactionary ideas deserve a reprimand, (iii) that we
have good reasons to formally expressour opposition to gratuitously offensive speech, (iv) that
we have good reasons to compensate hurt feelings, (v) that we ought to fairlydistribute the
burdens of incivility, or (vi) that persistent, gratuitous offensiveness can be a kind
of oppression that people would rightly want to avoid. But at most, these things seem like
defeasible pro tanto reasons for restricting hate speech reasons liable to be overridden by
considerations that countervail against legal restrictions on any conduct (e.g. costliness, risk of
inefficacy, risk of sinister misuse), quite apart from the countervailing free speech concerns that
specially apply in this arena.7 On the other hand, if we can establish that hate speech does harm
its targets, these other rationales become rather more compelling. Our reasons for legislating to
remedy wrongs, mete out deserts, and distribute burdens, for instance, seem weightier when the
adverse states of affairs, from which the reasons derive, involve the infliction of harm rather than
offence or affront.8 If the harmfulness of hate speech can be established, it remains a further
question how to best prosecute the case in favour of legal restriction; for example, whether to
emphasise the aim of affording just deserts to individuals who inflict harm via hate speech, over
the aim of harm-prevention per se. My claim is that no convincing rationale for legally restricting
hate speech comes into view until we establish that hate speech is harmful to its targets.

Champion Briefs

304

NEG: Ban Hate Speech CP

January/February 2017

A2 Hate Speech CP: Majority of People dont believe in


speech prohibitions.
Poushter, Jacob. "40% Of Millennials OK With Limiting Speech Offensive To Minorities." Pew
Research Center. November 20, 2015. Web. December 05, 2016.
<http://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-with-limitingspeech-offensive-to-minorities/>.
We asked whether people believe that citizens should be able to make public statements that are
offensive to minority groups, or whether the government should be able to prevent people from
saying these things. Four-in-ten Millennials say the government should be able to prevent people
publicly making statements that are offensive to minority groups, while 58% said such speech is
OK. Even though a larger share of Millennials favor allowing offensive speech against
minorities, the 40% who oppose it is striking given that only around a quarter of Gen Xers (27%)
and Boomers (24%) and roughly one-in-ten Silents (12%) say the government should be able to
prevent such speech.

Champion Briefs

305

NEG: Ban Hate Speech CP

January/February 2017

US is behind other countries on limiting hate speech.


International contracts also support it.
McConnell, Michael. "You Cant Say That." New York Times. June 22, 2012. Web. December
05, 2016. <http://www.nytimes.com/2012/06/24/books/review/the-harm-in-hate-speechby-jeremy-waldron.html>.
The United States is almost alone among Western liberal democracies in not punishing what is
called hate speech oral or written messages that incite hatred against a person or group on
the basis of their race, religion, sex, ethnicity or sexual orientation. Canada, Britain, Denmark,
Germany and New Zealand have such laws, and the International Covenant on Civil and Political
Rights purports to require signatory nations to pass them. In the American constitutional
tradition, by contrast, even detestable speech is permitted so long as the speaker does not
threaten violence or incite others to it. The Supreme Courts recent decision upholding the right
of the Westboro Baptist Church to engage in hateful picketing of military funerals in opposition
to toleration of homosexuality (God Hates Fags, one sign said) is a ready example. That case
would almost certainly have come out differently in other liberal democracies.

Champion Briefs

306

NEG: Ban Hate Speech CP

January/February 2017

Majority of college students believe hateful speech should be


limited.
Anderson, Nick. "Survey: College Students Seek Balance On Free Speech And Hate Speech."
Washington Post. April 04, 2016. Web. December 05, 2016.
<https://www.washingtonpost.com/news/grade-point/wp/2016/04/04/survey-collegestudents-seek-balance-on-free-speech-and-hate-speech/?utm_term=.dff1733a0991>.
Overall, 69 percent said colleges should be able to limit the use of slurs and other language that
is intentionally offensive to certain groups. Seventy-nine percent of black students and 67
percent of white students endorsed this view. Overall, 63 percent said colleges should be able to
restrict wearing of costumes that stereotype certain racial or ethnic groups. A larger share of
black students 77 percent agreed with this statement, compared to 62 percent of white
students.

Champion Briefs

307

NEG: Ban Hate Speech CP

January/February 2017

Speaking up isnt enough to change actions, counter speech


is futile in the case of deeply seeded hateful attitudes.
Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
The notion that counterspeech will adequately combat group hatred and promote civil liberties,
and is sufficient to maintain tolerance on campus, which Nadine Strossen and the ACLU have
advanced,276 has been roundly rejected by the international community.27 The U.S. Supreme
Court has now endorsed the consensus perspective on free speech policy. Just as with sexual
harassment in the workplace, counterspeech is an inadequate remedy for the direct, intimidating
attack of hate speech.278 Racism, chauvinism, ethnocentrism, and xenophobia are too deeply
embedded in culture to be changed overnight. While public attitudes are being changed, hate
speech continues to menace out-groups. Telling a university employee subject to racial or sexual
coercion, racial degradation, or ethnic insults to simply respond to antagonists provides victims
no legal redress but mere platitudes. Just as responding to comments in a hostile environment
does not solve the problem of workplace harassment, neither does counterspeech decrease the
risk posed by advocacy groups committed to carrying out a campus campaign of group
intimidation, exclusion, and discrimination. Expecting students at public universities to simply
talk things out and convince those who intimidate them of the fallacy of their threatening words
and behaviors fails to provide a procedurally cognizable way of seeking legal redress. The
mantra of more speech is based on libertarian faith that the world community discounted after it
understood the effectiveness of antisemitic Nazi propaganda.279 It also elevates harassment and
intimidation to an equal plane with dialogue. To the contrary, the former is a means of
disengagement with its reviled object, while the latter is a form of mutual engagement between
the interlocutors.

Champion Briefs

308

NEG: Ban Hate Speech CP

January/February 2017

Majority of schools maintain restrictive speech policies


including University of California schools which are
restricted by state law.
Watanabe, Teresa. "Students Challenge Free-speech Rules On College Campuses." LA Times.
July 01, 2014. Web. December 05, 2016. <http://www.latimes.com/local/lanow/la-me-lnfree-speech-20140701-story.html>.
In a report published this year, the foundation found that 58% of 427 major colleges and
universities surveyed maintain restrictive speech codes despite what it called a "virtually
unbroken string of legal defeats" against them dating to 1989. Even in California unique in
the nation for two state laws that explicitly bar free speech restrictions at both public and private
universities the majority of campuses retain written speech codes, he said. Among 16
California State University campuses surveyed by the group, for instance, 11 were rated "red" for
employing at least one policy that "substantially restricts" free speech. "Universities are scared of
people who demand censorship -- they're afraid of lawsuits and PR problems," said Robert
Shibley, the foundations senior vice president. "Unfortunately, they are more worried about that
than about ignoring their 1st Amendment responsibilities," he added. "The point of the project is
to balance out the incentives that cause universities to institute rules that censor speech."

Champion Briefs

309

NEG: Ban Hate Speech CP

January/February 2017

Banning of free speech zones can be done on a state level.


Missouri empirically proves, passed with overwhelming
support.
Foundation For Individual Rights In Educ. "Missouri Governor Signs Law Banning Campus
Free Speech Zones." July 15, 2015. Web. December 05, 2016.
<https://www.thefire.org/missouri-governor-signs-law-banning-campus-free-speechzones/>.
Yesterday, Missouri Governor Jay Nixon signed into law Senate Bill 93, the Campus Free
Expression Act (CAFE Act), which prohibits public colleges and universities from restricting
student speech to tiny, out-of-the-way free speech zones. The Foundation for Individual Rights
in Education (FIRE) worked with members of the legislature to ensure this important piece of
legislation became law. One in six public colleges in the United States use free speech zones to
restrict student speech, said FIRE Legislative and Policy Director Joe Cohn. Thanks to the
CAFE Act, and to all of those who fought so hard to get it passed, Missouri is now the second
state to statutorily ensure that its public colleges and universities will no longer be among them.
The CAFE Act was championed by sponsors Senator Ed Emery, Representative Rick Brattin,
Representative Mike Moon, and Representative Mike Lair, chairman of the House Select
Committee on Education. The bill also enjoyed the support of organizations from across the
political and ideological spectrum, including the Alliance Defending Freedom and the American
Civil Liberties Union of Missouri. With overwhelming bipartisan support in the Senate, the
CAFE Act was passed by a unanimous 340 vote. It passed the House of Representatives in the
legislative sessions final hours on May 15, and was signed by Governor Nixon yesterday.
Missouri and Virginia are now the only states with statutes that prevent public colleges from
limiting expressive activities through overly restrictive free speech zones on their campuses.
Virginias legislation was also supported by FIRE, and was signed into law just last year. FIRE
will continue to work with state legislatures to make sure student rights are protected. Opening
up campuses for free speech is an important step towards ensuring that colleges and universities
continue to produce the robust debates and discussions necessary for learning, said FIRE
Executive Director Robert Shibley. Every state should follow Virginia and Missouris lead and
pass a CAFE Act, and FIRE stands ready to help them do so.

Champion Briefs

310

NEG: Ban Hate Speech CP

January/February 2017

A2 Ban Hate Speech CP- It is perceived that campuses are


unsafe to hold unpopular views on.
Committee On The Judiciary. "FIRST AMENDMENT PROTECTIONS ON PUBLIC
COLLEGE AND UNIVERSITY CAMPUSES." Serial No. 11431. June 02, 2014. Web.
December 07, 2016. <https://www.thefire.org/cases/house-judiciary-committee-hearingon-first-amendment-protections-on-public-college-and-university-campuses/>.
Yet regarding free speech, the American Association of Colleges and Universities found in a
2010 survey of 24,000 college students that only 36 percent strongly agreed with the following
statement that it is safe to hold unpopular views on campus. Of 9,000 campus professionals,
only 19 percent agreed with the same statement. As students progress toward their senior year,
they become even more doubtful that it is safe to hold unpopular views on campuses. We should
all let that sink in for a moment. According to the American Association of College and
Universitys own survey, an overwhelming majority of students and faculty were not confident
that it was safe to hold unpopular views on campus.

Champion Briefs

311

NEG: Ban Hate Speech CP

January/February 2017

Hate speech and actions are rampant on college campuses,


anti semetic and title IX issues show.
Committee On The Judiciary. "FIRST AMENDMENT PROTECTIONS ON PUBLIC
COLLEGE AND UNIVERSITY CAMPUSES." Serial No. 11431. June 02, 2014. Web.
December 07, 2016. <https://www.thefire.org/cases/house-judiciary-committee-hearingon-first-amendment-protections-on-public-college-and-university-campuses/>.
According to the National Demographic Survey of American Jew- ish College Students
conducted by researchers at Trinity College, 54 percent of Jewish students reported experiencing
anti-Semitism on campus in the first 6 months of the 2013-2014 school year54 percent, antiSemitism, in the first 6 months. This follows the 2013 Pew Research Center report that found 22
percent of younger Jewish Americans reported being called an of- fensive name based on their
Jewish identity. According to the American Association of University Women, 80 percent of
female college students report having been sexually har- assed at their school by a peer, and 25
percent of men admitted targeting others with homophobic slurs. According to another study, 20
percent of the college students surveyed said that harass- ment caused the inability to concentrate
in class, and 23 percent said it prevented them from even attending class. Part of the problem is
the lack of student body diversity. Accord- ing to a study in the Chronicle of Higher Education,
the less di- verse the student body, the higher the percentage of minority stu- dents who report
experiencing discrimination, with more than 60 percent reporting such discrimination at the least
diverse schools. Great support for public education.

Champion Briefs

312

NEG: Ban Hate Speech CP

January/February 2017

Regulating hate speech isnt about censorship but about


ensuring equality of education.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
This authority to regulate involyes not a privilege of arbitrary discretion to censor, but rather the
ability to devise a scheme of regulation that comports with principles of equality and equal
access to education, the First Amendment as applicable to the public schools, and normative
theories of the educational purposes and authorities. One dimension of this power involves
thoughtful consideration of hate, its causes, and its effects on target students, perpetrators, and
the learning environment.26 Another dimension of this power requires contemplation of
nonregulatory countermeasures, including, inter alia, education and training, designed to elicit
student participation in public condemnation and repudiation of hate incidents and to encourage
student discussion on the elimination of inter-group conflict and tension.27

Champion Briefs

313

NEG: Ban Hate Speech CP

January/February 2017

Calls to defend free speech are akin to cries to defend the


existing power relations in the status quo.
PEN America. "And Campus For All."October 17, 2016. Web. December 07, 2016.
<https://pen.org/on-campus>.
Many observers have suggested that while some student demands may be overblown, fervent
expressions of con- cern for the fate of academic freedom and campus life are likewise
exaggerated. Some go so far as to suggest that cries of alarm over the fate of free speech on
campus veil can mask a surreptitious agenda to defend the status quo and put o demands for
greater racial, gender and other forms of justice. That was the larger point in David Coles
November 18, 2015 New York Review of Books article: Focusing on o ensive speech also
distracts from the more signi cant issues of racial injustice that persist more than sixty years a
er Brown v. Board of Education declared segregation unconstitutional and that remain the
Yale students principal con- cerns. These are the pressing racial problems of our timenot
Erika Christakiss email. As media reactions illustrate there is a real risk that by going a er the
Christakises the students very legitimate complaints about much more serious problems will be
drowned out. Yale students are right to complain that their crit- ics have failed to look beyond
the viral video. If we want to understand the controversy at Yale, or at any of the many colleges
that are experiencing similar protests, we must take seriously the deep and lasting wounds that
continue to afflict the African-American community. We must demand, with the students, more
diversity in faculty and sta, greater resources for minority students, and greater sensitivity to the
challenges of building an integrated community of mutual respect.285 Cole acknowledges that,
in some cases, students have unhelpfully given their critics fodder, noting, [d]emands to punish
Erika Christakis because her genuine expression of opinion was deemed o ensive undermine the
cause. The students would do well to abandon that request and focus their and our a ention on the
more systemic prob- lems of equal justice that continue to plague Yale, and the nation.286 In a
November 10, 2015 New Yorker article titled Race and the Free Speech Diversion, Jelani Cobb
wrote that the Yale con icts had been misrepresented, and asked readers to a end to the larger
racial context: To understand the real complexities of these stu- dents situation, free-speech
purists would have to grapple with what it means to live in a building named for a man who
dedicated himself to the principle of white supremacy and to the ownership of your ancestors
[Ed. Note: John C. Calhoun]...287 At Columbia Journalism Review, Danny Funt wrote a December 12, 2015 article, At Yale, a ery debate over whos being silenced, that explored some
students belief that concerns over speech were an a empt to divert a ention from their underlying
concerns with institutional racism.288 Funt noted that they were at times nave about how their
protests would be reported by the media: Students I spoke with were severely disappointed that
news coverage has xated on concerns over speech suppression. The issue for those actually on
the ground, they stressed, is solely institutional racism.289 On December 17, 2015, Angus
Johnston, an academic who studies the history of student protest, wrote a Roll- ing Stone article
entitled Theres No PC Crisis: In De- fense of Student Protesters.290 He mentioned a widely
ridiculed January 2015 decision by Mount Holyoke Proj- ect Theatre students not to stage the
once-risqu Va- gina Monologues after running it annually for ten years. Students decided to

Champion Briefs

314

NEG: Ban Hate Speech CP

January/February 2017



PEN America. "And Campus For All."October 17, 2016. Web. December 07, 2016.
<https://pen.org/on-campus>.
instead create a new show them- selves out of concern for the sensitivities of transgender women
who do not have vaginas.291 Some critics decried the decision as an example of political
correctness in overdrive, causing students to self-censor and mothball and important feminist
play out of fear of offending a small sub-group. Yet Johnston wrote that the focus on free speech
suppression had it precisely backwards, because the decision not to perform the play was itself
an act of protected speech: When word of this decision broke in the media, the troupe was widely
accused of censorship But who exactly was being censored here? Who was being silenced?
What was being regulated? The troupe hadnt been forbidden to stage the play. Theyd just
decided not to. Surely the same freedom of speech that had given them the right to perform it
gave them the right to stop. And even if other students had en- couraged them in their decision
if, say, activists had gone to the troupe and explained their objections to the play and asked them
not to put it on again, and the performers had mulled the request and decided to honor itthat
wouldnt have been censorship ei- ther. It would have been dialogue, discussionexactly the
encounter of minds and ideas that the university is supposed to nurture.292
*Ellipsis from source

Champion Briefs

315

NEG: Critical Race Theory NC



January/February 2017

Critical Race Theory NC


Critical Race Theory (CRT) is an outgrowth of Critical Legal Theory, primarily

developed by a resistance to the depiction of law as a neutral tool, and a larger ignorance of the
racialized effects of legal codes, rulings, and proclamations. As an analytical tool, CRT offers
important perspectives about how the law comes to reinstitute White supremacy, and how (or if)
the law can be an effective mechanism for social and political change. One of the primary
scholars cited in support of hate speech regulation, Richard Delgado, argues that hate speech is a
means of citing and re-enacting a long history of racism, giving the power of these words to be
injurious.
To effectively utilize Critical Race Theory as a possible negative position, there are a few
different routes debaters can take. If you have a mind for more philosophical debates,
frameworks that work well with this line of argumentation focus on equality and equal
recognition of marginalized bodies. Frameworks that come immediately to mind include: Veil of
Ignorance, Structural Violence (Winter and Leighton), and Kantian frameworks that focus on
equal consideration of agents.
To utilize the cards in this file effectively underneath these frameworks, you must show
that 1) hate speech is part of a larger history of white supremacy, and the use of these injurious
words helps recreate and maintain these systems and 2) hate speech has real world effects on
marginalized bodies in terms of their ability to pursue educational opportunities, and to
participate within public discourse generally. Alternatively, you can couple some of the
arguments Richard Delgado makes with Role of the Ballots that focus on the contestation of
racism within discursive spaces. Specificity to educational and discursive spaces is key here,
since it will better prepare you for comparison between framing mechanisms.

Champion Briefs

316

NEG: Critical Race Theory NC

January/February 2017

A2 More Discourse Remedies: Remedies that contain a more


speech aspect are ineffective deterrents to action.
Delgado, Richard. "Apologize And Move On? Finding A Remedy For Pornography, Insult, And
Hate Speech." 67 UNIVERSITY OF COLORADO LAW REVIEW 93. 1996. Web.
December 04, 2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2411632>.
A second mechanism that might explain why Abel and others who believe that redress ought to
be taken seriously nevertheless shrink from effective remedies we have termed the empathic
fallacy.47 This mechanism consists of our believing that we can talk back against racism and
other social evils, that we can change our own and others' consciousness through verbal meansexhortation, appeals, storytelling, brief-writing, and so on-aimed at demonstrating the error of the
offender's ways.4" This is a mistake. One can often persuade another person that he or she is in
error with respect to a small, bounded point or a matter of fact.49 But deeply inscribed social
evils, like racism and sexism, that are woven into our very patterns of thought and discourse are
not so easily dispelled. They form part of our mindset, the collection of stories and narratives by
which we organize experience, including acceptance or rejection of new stories such as those
offered by a race reformer.5" History shows that the dominant stereotypes of a particular era-for
example, that of lazy, hypersexual, oranimalistic blacks-are rarely seen as especially offensive at
the time.5' It is only years later, when consciousness and conditions shift, that we look back and
ask, how could we have believed that?52 This inability to perceive the dominant racism of our
time bodes ill for language-based remedies, such as the apology that Abel touts, that contain a
"more speech" aspect (pp. 144-51). It also should raise doubts about mild remedies, such as a
word and a handshake, as deterrents for future misbehavior. The person who utters hate speech is
unlikely to see what he or she has done as very serious."3 When approached by a spokesperson
for Abel's community group bent on bringing the perpetrator and victim together for a struggle
session, the former is apt to respond with laughter or disbelief: "Why are you taking this so
seriously? Lighten up."

Champion Briefs

317

NEG: Critical Race Theory NC

January/February 2017

A2 Harmlessly blow off steam: The connection between hate


speech and violent action is undeniable, language has
material and concrete effects.
Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016. <h
p://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
The pressure valve argument holds that rules prohibiting hate speech are unwise because they
increase the danger racism poses to minorities.50 Forcing racists to bottle up their dislike of
minority group members means that they will be more likely to say or do something hurtful later.
Free speech thus functions as a pressure valve, allowing tension to dissipate before it reaches a
dangerous level. 1 Pressure valve proponents argue that if minorities understood this, they would
oppose antiracism rules. The argument is paternalistic; it says we are denying you what you say
you want, and we are doing it for your own good. The rules, which you think will help you, will
really make matters worse. If you knew this, you would join us in opposing them. Hate speech
may make the speaker feel better, at least temporarily, but it does not make the victim safer.
Quite the contrary, the psychological evidence suggests that permitting one person to say or do
hateful things to another increases, rather than decreases, the chance that he or she will do so
again in the future. 2 Moreover, others may believe it is permissible to follow suit. 3 Human
beings are not mechanical objects. Our behavior is more complex than the laws of physics that
describe pressure valves, tanks, and the behavior of a gas or liquid in a tube. In particular, we use
symbols to construct our social world, a world that contains categories and expectations for
"black," "woman," "child," "criminal," "wartime enemy," and so on.5 4 Once the roles we create
for these categories are in place, they govern the way we speak of and act toward members of
those categories in the future.55 Even simple barnyard animals act on the basis of categories.
Poultry farmers know that a chicken with a single speck of blood will be pecked to death by the
others." With chickens, of course, the categories are neural and innate, functioning at a level
more basic than language. But social science experiments demonstrate that the way we
categorize others affects our treatment of them. An Iowa teacher's famous "blue eyes/brown
eyes" experiment showed that even a one-day assignment of stigma can change behavior and
school performance.57 At Stanford University, Phillip Zimbardo assigned students to play the
roles of prisoner and prison guard, but was forced to discontinue the experiment when some of
the participants began taking their roles too seriously. 8 And Diane Sculley's interviews with
male sexual offenders showed that many did not see themselves as offenders at all. In fact,
research suggests that exposure to sexually violent pornography increases men's antagonism
toward women and intensifies rapists' belief that their victims really welcomed their attentions.59
At Yale University, Stanley Milgram showed that many members of a university community
could be made to violate their conscience if an authority figure invited them to do so and assured
them this was permissible and safe.6" The evidence, then, suggests that allowing persons to
stigmatize or revile others makes them more aggressive, not less so. Once the speaker forms the

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Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016. <h
p://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
category of deserved-victim, his or her behavior may well continue and escalate to bullying and
physical violence. Further, the studies appear to demonstrate that stereotypical treatment tends to
generalize- what we do teaches others that they may do likewise. Pressure valves may be safer
after letting off steam; human beings are not.

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A2 Reverse Enforcement: The empirical evidence of using


hate speech codes against marginalized groups is lacking. In
fact, most of the regulation of hate speech prevents
victimization.
Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016. <h
p://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
But the empirical evidence does not suggest that this is the pattern, much less the rule. Police and
FBI reports show that hate crimes are com- mitted much more frequently by whites against
blacks than the reverse. 63Statistics compiled by the National Institute Against Violence and
Prejudice confirm what the police reports show, that a large number of blacks and other
minorities are victimized by racist acts on campus each year.' Moreover, the distribution of
enforcement seems to be consistent with com- mission of the offense. Although an occasional
minority group member may be charged with a hate crime or with violating a campus hate
speech code, these prosecutions seem rare.6 5Racism, of course, is not a one-way street; some
minorities have harassed and badgered whites. Still, the reverse-enforcement objection seems to
have little validity in the United States. A recent study of the international aspects of hate speech
regulation showed that in repressive societies, such as South Africa and the former Soviet Union,
laws against hate speech have indeed been deployed to stifle dissenters and members of minority
groups.6 6 Yet, this has not happened in more progressive countries.67 The likelihood that
officials in the United States would turn hate speech laws into weapons against minorities seems
remote.

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A2 Free Speech Helps Marginalized Groups: The history of


the application of the First Amendment and its doctrinal
exceptions proves that the first amendment has long been a
tool that those with power benefit from.
Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016.
<http://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
The argument ignores the history of the relationship between racial minorities and the First
Amendment. In fact, minorities have made the greatest progress when they acted in defiance of
the First Amendment.70 The original Constitution protected slavery in several of its provisions,7
1 and the First Amendment existed contemporaneously with slavery for nearly 100 years. Free
speech for slaves, women, and the propertyless was simply not a major concern for the drafters,
who appear to have conceived the First Amendment mainly as protection for the kind of refined
political, scientific, and artistic discourse they and their class enjoyed. Later, of course,
abolitionism and civil rights activism broke out. But an examination of the role of speech in
reform movements shows that the relationship of the First Amendment to social advance is not
so simple as free speech absolutists maintain. In the civil rights movement of the 1960s, for
example, Martin Luther King, Jr. and others did use speeches and other symbolic acts to kindle
America's conscience.73 But as often as not, they found the First Amendment (as then
understood) did not protect them.7 4They rallied and were arrested and convicted; sat in, were
arrested and convicted; marched, sang, and spoke and were arrested and convicted.75 Their
speech was seen as too forceful, too disruptive. Many years later, to be sure, their convictions
would sometimes be reversed on appeal, at the cost of thousands of dollars and much gallant
lawyering. But the First Amendment, as then understood, served more as an obstacle than a
friend.Why does this happen? Narrative theory shows that we interpret new stories in terms of
the old ones we have internalized and now use to judge reality.7 7 When new stories deviate too
drastically from those that form our current understanding, we denounce them as false and
dangerous. The free market of ideas is useful mainly for solving small, clearly bounded disputes.78 History shows it has proven much less useful for redressing sys- temic evils, such as
racism. 79 Language requires an interpretive paradigm, a set of shared meanings that a group
agrees to attach to words and terms.8 0 If racism is deeply inscribed in that paradigm-woven into
a thousand scripts, stories, and roles-one cannot speak out against it without appear- ing
incoherent. An examination of the current landscape of First Amendment excep- tions reveals a
similar pattern. Our system has carved out or tolerated doz- ens of "exceptions" to the free
speech principle: conspiracy; libel; copyright; plagiarism; official secrets; misleading
advertising; words of threat; disrespectful words uttered to a judge, teacher, or other authority
figure; and many more. 2 These exceptions (each responding to some inter- est of a powerful
group)83 seem familiar and acceptable, as indeed perhaps they are. But a proposal for a new
exception to protect some of the most defenseless members of society, 18-year old black
undergraduates at predominantly white campuses, immediately produces consternation: the First

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Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016.
<http://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
Amendment must be a seamless web. It is we, however, who are caught in a web, the web of the
familiar. The First Amendment seems to us useful and valuable. It reflects our inter- ests and
sense of the world. It allows us to make certain distinctions, toler- ates certain exceptions, and
functions in a particular way we assume will be equally valuable for others. But the history of the
First Amendment, as well as the current landscape of doctrinal exceptions, shows that it is far
more valuable to the majority than to the minority, far more useful for confining change than for
propelling it.8"



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A2 More Speech is Key: More speech is often unsafe for the


victim of the recipient of hate speech, making the possibility
for education impossible.
Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. December 09, 1994. Web.
December 03, 2016. <h
p://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.

In reality, those who hurl racial epithets do so because they feel empowered to do so.92 Indeed,
their principal objective is to reassert and reinscribe that power. One who talks back is perceived
as issuing a direct challenge to that power. The action is seen as outrageous, as calling for a
forceful response. Often racist remarks are delivered in several-on-one situations, in which
responding in kind is foolhardy.93 Many highly publicized cases of racial homicide began in just
this fashion. A group began badgering a black person. The black person talked back, and paid
with his life.94 Other racist remarks are delivered in a cowardly fashion, by means of graffiti
scrawled on a campus wall late at night or on a poster placed outside of a black student's
dormitory door.95 In these situations, more speech is, of course, impossible. Racist speech is
rarely a mistake, rarely something that could be corrected or countered by discussion. What
would be the answer to "Nigger, go back to Africa. You don't belong at the University"? "Sir,
you misconceive the situation. Prevailing ethics and constitutional interpretation hold that I, an
African American, am an individual of equal dignity and entitled to attend this university in the
same manner as others. Now that I have informed you of this, I am sure you will modify your
remarks in the future"? The idea that talking back is safe for the victim or potentially educative
for the racist simply does not correspond with reality. It ignores the power dimension to racist
remarks, forces minorities to run very real risks, and treats a hateful attempt to force the victim
outside the human community as an invitation for discussion. Even when successful, talking
back is a burden. Why should minority undergraduates, already charged with their own
education, be responsible constantly for educating others?

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A2 Hate speech distracts from "real" oppression: Language


constructs reality, so hate speech codes are an effective way
to dissociate PoC from harmful stereotypes that attack their
personhood.
Delgado, Richard. "The Neoconservative Case Against Hate-Speech RegulationLively, D."
Vanderbilt Law Review Vol. 47. 1994. Web. December 03, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112274>.
But is it so clear that efforts to control hate speech are a waste of time and resources, at least
compared to other problems that the campaigners could be addressing? What neoconservative
writers may fail to realize is that eliminating hate speech goes hand in hand with reducing what
they term "real racism." Certainly, being the victim of hate speech is a less serious affront than
being denied a job, a house, or an education. It is, however, equally true that a society that speaks
and thinks of minorities derisively is fostering an environment in which such discrimination will
occur frequently. This is so for two reasons. First, hate speech, in combination with an entire
panoply of media imagery, constructs and reinforces a picture of minorities in the public mind.36
This picture or stereotype varies from era to era, but is rarely positive: persons of color are happy
and carefree, lascivious, criminal, devious, treacherous, untrustworthy, immoral, of lower
intelligence than whites, and so on.37 This stereotype guides action, accounting for much misery
in the lives of persons of color. Examples include motorists who fail to stop to aid a stranded
black driver, police officers who hassle African-American youths innocently walking or
speaking to each other on the streets, or landlords who act on hunches or unarticulated feelings in
renting an apartment to a white over an equally or more qualified black or Mexican. Once the
stage is setonce persons of color are rendered one-down in the minds of hundreds of actors
the selection of minorities as victims of what even the toughlove crowd would recognize as real
discrimination increases in frequency and severity. It also acquires its capacity to sting. A white
motorist who suffers an epithet ("goddam college kid!") may be momentarily stunned. But the
epithet does not call upon an entire cultural legacy the way a racial epithet does, nor deny the
victim her status and personhood.

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Hate speech codes are effective--other Western democracies


prove.
Delgado, Richard. "The Neoconservative Case Against Hate-Speech RegulationLively, D."
Vanderbilt Law Review Vol. 47. 1994. Web. December 03, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112274>.
Moreover, success is more possible than the toughlove crowd would like to acknowledge. A host
of Western industrialized democracies have instituted laws against hate speech and hate crime,
often in the face of initial resistance. Some, like Canada, Great Britain, and Sweden, have
traditions of respect for free speech and inquiry rivaling ours.61 Determined advocacy might
well accomplish the same here. In recent years, manyperhaps several hundredcollege
campuses have seen fit to institute student conduct codes penalizing face-to-face insults of an
ethnic or similar nature, many in order to advance interests that the campus straightforwardly
identified as necessary to its function, such as protecting diversity or providing an environment
conducive to education.62 Moreover, powerful actors like government agencies, the writers'
lobby, industries, and so on have generally been quite successful at coining free speech
"exceptions" to suit their interestlibel, defamation, false advertising, copyright, plagiarism,
words of threat, and words of monopoly, just to name a few." Each of these seems natural and
justified, because time-honored, and perhaps each is. But the magnitude of the interest
underlying these exceptions seems no less than that of a young black undergraduate subject to
hateful verbal abuse while walking late at night on campus." New regulation is of course subject
to searching scrutiny in our laissez-faire age. But the history of free speech doctrine, especially
the landscape of "exceptions," shows that need and policy have a way of being translated into
law. The same may well continue to happen with the hate-speech movement.

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A2 Self-Victimization: Hate speech codes provide another


avenue of recourse which allows marginalized groups to
better take control of their destinies rather than being
passive and accepting racist abuse.
Delgado, Richard. "The Neoconservative Case Against Hate-Speech RegulationLively, D."
Vanderbilt Law Review Vol. 47. 1994. Web. December 03, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112274>.
Would putting into place hate-speech rules induce passivity and a victim mentality among
minority populations? This seems unlikely, among other reasons because other alternatives will
remain as before. No African American or lesbian student is required to make a complaint when
targeted by vicious verbal abuse. He or she can talk back or ignore it if he or she sees fit. Hatespeech rules sim-ply provide an additional avenue of recourse to those who wish to take
advantage of them. Indeed, one could argue that filing a complaint constitutes one way of taking
charge of one's destiny: One is active, instead of passively "lumping it" when verbal abuse
strikes. It is worth noting that we do not make the "victimization" charge in connection with
other offenses that we suffer, such as having a car stolen or a house burglarized, nor do we
encourage those victimized in this fashion to "rise above it" or talk back to their victimizer. If we
see recourse differently in the two sets of situations it may be because we secretly believe that a
black who is called "nigger" by a group of whites is in reality not a victim. If so, it would make
sense to encourage him not to dwell on or sulk over the event. But this is different from saying
that filing a complaint deepens victimization; moreover, many studies have shown it simply is
untrue.68 Racist speech is the harm. Filing a complaint is not. There is no empirical evidence
that filing a civil rights complaint causes otherwise innocuous behavior to acquire the capacity to
harm the complainant.

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A2 Classist objection.
Delgado, Richard. "The Neoconservative Case Against Hate-Speech RegulationLively, D."
Vanderbilt Law Review Vol. 47. 1994. Web. December 03, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112274>.
In one respect, the classist argument is plainly off target. Both blue-collar and upper-class people
will be prohibited from uttering specified slurs and epithets. Many hate-speech codes penalize
serious face-to-face insults based on race, ethnicity, and a few other factors.72 Such rules would
penalize the same harmful speechfor example, "Nigger, go back to Africa; you don't belong at
this university"whether spoken by the millionaire's son or the coal miner's daughter. If, in fact,
the prep school product is less likely to utter words of this kind, or to utter only intellectualized
versions like the one in Gates' example,73 this may be because he is less racist in a raw sense. If,
as many social scientists believe, prejudice tends to be inversely correlated with educational level
and social position, the wealthy and well educated may well violate hate-speech rules less often
than others." And, to return to Gates' example, there is a difference between his two illustrations,
although it is not in the direction lie seems to suggest. "Out of my face, jungle bunny" is a more
serious example of hate speech because it (1) is not open to argument or a more-speech response;
and (2) has overtones of a direct physical threat. The other version, while deplorable, is unlikely
to be coupled with a physical threat, and is answerable by more speech.

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A2 Censorship: Hate speech rules are not a form of


censorship and pose no more danger than other
constitutional restrictions of speech.
Delgado, Richard. "Are Hate-Speech Rules Constitutional Heresy? A Reply To Steven Gey."
UNIVERSITY OFPENNSYLVANIA LAW REVIEW Vol. 146. March 01, 1998. Web.
December 06, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3437&context=penn_law_
review>.
A similar intuition applies to censorship. Suppression of speech is odious when it is government
hat is censoring the speech of a weak, voiceless dissident.'9 There, the dangers of silencing,
govern-mental self-aggrandizement, and nest-feathering rise to their most acute level. A
powerful actor like government should never be above criticism. But with hate-speech
regulation, the opposite situation prevails-an arm of government, usually a university, is
intervening to prevent private harm.2 0 Far from trying to insulate itself from criticism, or
intervening on the side of the powerful, the university is acting on behalf of persons who are
disempowered vis-a-vis their tormentors. Because few, if any, of the dangers of censorship loom,
it seems perverse to use the term in that way, just as it would sound strange to call a story
ridiculing blind people satire. Gey is particularly concerned with the social-construction
justification for anti-hate-speech measures.2 I think it perfectly sensible- who would want to live
in a society ten or twenty percent of whose members were regularly demeaned by face-to-face
insults7 and in popular culture? But even if not, this is by no means the only interest
proregulation writers have advanced. Racist speech damages the dignity, pecuniary prospects,
and psyches of its victims (particularly children),24 while it impedes the ability of colleges to
diversify their student bodies. When severe or protracted, it can even cause physical sickness,
including high blood pressure, tremors, sleep disturbance, and early death.26 In focusing only on
the most abstract and novel of the justifications, Gey has overlooked that hate-speech rules are
necessary to promote a number of social and educational objectives of a quite ordinary nature.
Moreover, Gey himself often blithely invokes the informed social consensus or "common
understanding"27 as though these were not social constructs, and ignores that the status quo (in
which minorities suffer frequent slights and insults) has a bias, too.28 Social constructionism, it
turns out, is impermissible only when wielded by minorities seeking to change the prevailing
situation. In addition, in his fixation on the supposed political dangers of hate-speech regulation,
Gey overlooks the numerous other "exceptions" and special doctrines that riddle free-speech
lawlibel, defamation (even of vegetables and produce), words of threat and of monopoly, state
secrets, copyright, plagiarism, disrespectful speech uttered to a judge or other authority figure,
and many more.29 With these, the state intervenes on behalf of actors who are quite empowered,
such as the military, agribusiness, or the community of commercially successful authors, and
where the risks of aggrandizement and increase of power are very real. Government, authors,
consumers, and other powerful groups are able to suppress speech that of-fends them, but when a

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Delgado, Richard. "Are Hate-Speech Rules Constitutional Heresy? A Reply To Steven Gey."
UNIVERSITY OFPENNSYLVANIA LAW REVIEW Vol. 146. March 01, 1998. Web.
December 06, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3437&context=penn_law_
review>.
university proposes a speech code to protect some of the most defenseless members of societyblack, brown, gay, or lesbian undergraduates at dominantly white institutions- Professor Gey
charges us with constitutional heresy and warns that we will all end up thought-controlled
zombies.0 But racism is a classic case of democratic failure; to insist that minorities be at the
mercy of private remonstrance against their tormentors-and that the alternative is censorship-is to
turn things on their head.




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A2 Unnecessary: Racism continues to exist, hate speech is


one of those forms. This is no more invasive than other civil
rights remedies.
Delgado, Richard. "Are Hate-Speech Rules Constitutional Heresy? A Reply To Steven Gey."
UNIVERSITY OFPENNSYLVANIA LAW REVIEW Vol. 146. March 01, 1998. Web.
December 06, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3437&context=penn_law_
review>.
Gey also reasons that hate-speech rules are unnecessary because the numerous civil rights acts
passed since 1957 are very broad-reaching. But useful as that landmark legislation may be, it
certainly has not been fully successful. Recent studies by "testers," one black, one white, but
otherwise as alike as possible, show the radically different receptions they receive when
shopping, renting an apartment, buying a car, or applying for a loan or job. 9 Today, more
African- American children attend segregated schools than did in Brown's day.4 0 And even if
these more tangible forms of discrimination were on the wane, hate-speech rules would still be
necessary to counter a cultural legacy of racism and pernicious stereotypes. Gey warns that this
would be tantamount to brainwashing and thought control,4' but he overlooks that society
already employs a variety of means to discourage racism, including education, laws, and official
statements. 2 Hate-speech rules would be no more intrusive than many of these measures.

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A2 Slippery Slope: There is no empirical evidence that a


slippery slope will occur--empirics overwhelmingly flow neg.
Delgado, Richard. "Are Hate-Speech Rules Constitutional Heresy? A Reply To Steven Gey."
UNIVERSITY OFPENNSYLVANIA LAW REVIEW Vol. 146. March 01, 1998. Web.
December 06, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3437&context=penn_law_
review>.
Finally, what are we to make of Gey's repeated deployment of the shopworn slippery-slope
argument that if courts give government the power to regulate speech in one area, it will soon
seize evenmore and use it in ways minorities might not like?43 One notices immediately that
Gey makes this argument almost entirely by means of hypothetical language: Once courts give
the go-ahead to hate-speech rules, other branches of government "may,"" "could,"43 "could
easily," 6 or "undoubtedly would"47 pass laws punishing speech we prize, including 48(possibly,
maybe, likely) even anti-racist speech itself. Anything is possible, of course, but it just has not
happened. Colleges that have enacted anti-hate-speech rules have not proceeded ineluctably to
enact even more sweeping rules or put everyone in jail.49 Western democracies that have
enacted hate-speech laws, such as Canada, Denmark, France, Germany, and the Netherlands,
have scarcely suffered a diminution of respect for free speech.50 The few examples Gey does
give of speech suppression, mainly McCarthy-era witch hunts, took place long before hatespeech rules were in effect and were more the product of political excess than lack of First
Amendment zeal. Indeed, during the McCarthy hearings, the nation's leading First Amendment
organization, the ACLU, chose to lay low instead of forcefully confronting McCarthyism and
blacklists.5 2 A second example of censorship Gey cites, from Canada, has been refuted by later
investigation.53



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A2 Reverse Enforcement: Administrators have an interest in


not reverse enforcing hate speech rules.
Delgado, Richard. "Ten Arguments Against Hate-Speech Regulation: How Valid?." Northern
Kentucky Law Review Vol. 23. 1996. Web. December 06, 2016.
<http://heinonline.org/HOL/Page?handle=hein.journals/nkenlr23&div=32&g_sent=1&co
llection=journals>.
The same is true with reverse enforcement. Some authorities may indeed begin charging black
students with hate speech directed against whites. But the American experience with hate-speech
rules shows that this is not a major concern, nor is it in most Western countries with a liberal
tradition. If reverse enforcement occasionally happens, it is not necessarily a bad thing-if in fact
the black or Mexican has harassed or terrorized a fellow student who is white or Asian. If the
fear is that college deans and other administrative officers are so racist that they will invent or
magnify charges against minority students in order to punish or expel them from campus, this is
entirely implausible. Figures from U.S. News and World report show that college administrators
and faculty harbor less anti-black animus than the average American, even than the average
college student. Indeed, it is the very concern of campus administrators over dwindling black
numbers that underlies enactment of most hate-speech rules.

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A2 CRT: More speech is a sufficient response, and it usually


occurs within highly political demonstrations and assembly
prompting helpful dialogue.
Calleros, Charles. "Paternalism, Counterspeech, And Campus Hate-Speech Codes: A Reply To
Delgado And Yun." 27 Ariz. St. L.J. 1249. 1995. Web. December 07, 2016.
<https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi
&srcid=3B15&doctype=cite&docid=27+Ariz.+St.+L.J.+1249&key=adea7e36ed5c41c09
7a683258a6ff81e>.
When offensive or hateful speech is not threatening, damaging, or impermissibly invasive and
therefore may constitute protected speech,57 education and counterspeech often will be an
appropriate response. However, proponents of free speech do not contemplate that counterspeech
always, or even normally, will be in the form of an immediate exchange of views between the
hateful speaker and his target. Nor do they contemplate that the target should bear the full burden
of the response. Instead, effective counterspeech often takes the form of letters, discussions, or
demonstrations joined in by many persons and aimed at the entire campus population or a
community within it. Typically, it is designed to expose the moral bankruptcy of the hateful
ideas, to demonstrate the strength of opinion and numbers of those who deplore the hateful
speech, and to spur members of the campus community to take voluntary, constructive action to
combat hate and to remedy its ill effects. 58 Above all, it can serve to define and underscore the
community of support enjoyed by the targets of the hateful speech, faith in which may have been
shaken by the hateful speech. Moreover, having triggered such a reaction with their own voices,
the targets of the hateful speech may well feel a sense of empowerment to compensate for the
undeniable pain of the speech. 5

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A2 CRT 2. "More speech" solution is often a powerful tool


for spurring social change in communities.
Calleros, Charles. "Paternalism, Counterspeech, And Campus Hate-Speech Codes: A Reply To
Delgado And Yun." 27 Ariz. St. L.J. 1249. December 09, 1995. Web. December 07,
2016. <https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi
&srcid=3B15&doctype=cite&docid=27+Ariz.+St.+L.J.+1249&key=adea7e36ed5c41c09
7a683258a6ff81e>.
One year after the counterspeech at A.S.U., Stanford University responded similarly to
homophobic speech. In that case, a first-year law student sought to attract disciplinary
proceedings and thus gain First Amendment martyrdom by shouting hateful homophobic
statements about a dormitory staff member. The dean of students stated that the speaker was not
subject to discipline under Stanford's code of conduct but called on the university community to
speak out on the issue, triggering an avalanche of counterspeech. Students, staff, faculty, and
administrators expressed their opinions in letters to the campus newspaper, in comments on a
poster board at the law school, in a published petition signed by 400 members of the law school
community disassociating the law school from the speaker's epithets, and in a letter written by
several law students reporting the incident to a prospective employer of the offending student. 71
The purveyor of hate speech indeed had made a point about the power of speech, just not the one
he had intended. He had welcomed disciplinary sanctions as a form of empowerment, but the
Stanford community was alert enough to catch his verbal hardball and throw it back with ten
times the force. Thus, the argument that counterspeech is preferable to state suppression of
offensive speech is stronger and more fully supported by experience than is conceded by
Delgado and Yun. In both of the cases described above, the targets of hateful speech were
supported by a community united against bigotry. The community avoided splitting into factions
because the universities eliminated the issue of censorship by quickly announcing that the hateful
speakers were protected from disciplinary retaliation. Indeed, the counterspeech against the
bigotry was so powerful in each case that it underscored the need for top administrators to
develop standards for, and some limitations on, their participation in such partisan speech. 72

Champion Briefs

334

NEG: Hate Speech DA



January/February 2017

Hate Speech DA
This disadvantage has the potential to be the backbone of the negative strategy in this

topic. It maintains high statistical credibility, and accesses a moral high ground, allowing you to
capture that ever-elusive concept of Pathos.
The uniqueness scenario for the Disadvantage is very well supported, especially in light
of the direction the media is taking in the election. The brink to the Disadvantage is simple, if we
stop having speech codes, a building group of people using speech on campus to rally violent
movements will strike. The interpretations on the concepts of fighting words vary, and this will
likely be a large place of debate on the Disadvantage. I would not be surprised to see
Affirmatives define their way out of a link.
The Disadvantages link relies on speech code success in silencing movements that are
attempting to rally violence. A smart Affirmative team may question at what point a phrase is
constituted as Hate Speech, but I think it is very important to take a step back and demonstrate
that there is a clear difference between Anti-Semitic, violent propaganda, and speech that is
criticizing Israels politics for example.
The impact of the Disadvantage could stop at violent and oppressive speech, or it could
press on to the very real scenario for physical violence. Although both arguments are compelling,
I think winning a chance for a vicious attack is best from the perspective of a judge.
Overall, you need to take a logical stance on this position and detach yourself from
abstract concepts of Democracy that the Affirmative Team will attempt to leverage against the
Disadvantage.

Champion Briefs

335

NEG: Hate Speech DA

January/February 2017

Anti-Semitism is at a decade long high on campuses, and is


growing resulting in vicious physical attacks and glorifying
murder.
Klein, Joseph. "The Alarming Rise Of Campus Anti-Semitism." Frontpage Mag. December 15,
2013. Web. December 08, 2016. <http://www.frontpagemag.com/fpm/213232/alarmingrise-campus-anti-semitism-joseph-klein>.
Anti-Semitism on U.S. college campuses is growing at an alarming rate. It has escalated to the
point that Jewish students on campuses have been physically attacked or threatened for
peacefully demonstrating their support of Israel. Events demonizing Jews and even glorifying the
murderers of Jews, in the guise of anti-Israel rhetoric, are tolerated by campus administrators
despite the hostile environment such events create for Jewish students who are open about their
beliefs in support of the Jewish state. Title VI of the Civil Rights act of 1964 prohibits various
forms of discrimination at federally funded programs, including higher educational institutions,
but the Obama administrations Department of Education has so far refused to enforce it against
federally funded universities and colleges that have allowed anti-Semitic harassment of Jewish
students to go on with relative impunity. For example, in a letter rejecting a complaint that had
accused a California state university of allowing a hostile environment for Jewish students to
exist on campus, the education departments Office for Civil Rights wrote: In the university
environment, exposure to such robust and discordant expressions, even when personally
offensive and hurtful, is a circumstance that a reasonable student in higher education may
experience. In this context, the events that the complainants described do not constitute
actionable harassment. The same administration that decries even the slightest hint of so-called
Islamophobia has treated hate speech and threats against Jewish students, which create a hostile
environment for them, as the legitimate exercise of free speech. This double standard is only
encouraging more hate and threats directed at Jewish students. A study of Religious Tolerance
on Campus published by the Institute for Jewish & Community Research in December of 2011,
entitled ALONE ON THE QUAD: Understanding Jewish Student Isolation on Campus,
surveyed over 1,400 students in the United States. The Institute, which claims its survey to be
one of the largest and most comprehensive of its kind, found that Over 40% of students confirm
Anti-Semitism on their campus.

Champion Briefs

336

NEG: Hate Speech DA

January/February 2017

Hate speech promotes violence by encouraging a culture of


the other.
Halpern, Howard. "How Hate Speech Leads Readily To Violence." May 05, 1995. Web.
December 05, 2016. <http://www.nytimes.com/1995/05/05/opinion/l-how-hate-speechleads-readily-to-violence-477795.html>.
Social psychologists and demagogues have long known that if ordinary citizens are to be
provoked to violent actions against individuals or groups of fellow citizens, it is necessary to
sever the empathic bond with those to be attacked by painting them as different and despicable.
We are unlikely to harm a friendly neighbor because she has strong views about equal rights for
women, but if we call her a "femi-Nazi," she becomes "the other" -- evil, dangerous, hated. We
are unlikely to harm the couple down the block who are active on behalf of protecting
endangered species, but if we call them "environmental whackos," they become "the other" -weirdos who must be vilified and suppressed as enemies to "normal" Americans. When our
shared humanity with those with whom we disagree is stripped away, it becomes acceptable to
blow them up. The answer is certainly not to censor such speech, but those who recognize this
danger must challenge it wherever it exists, even in those with whom we politically agree.

Champion Briefs

337

NEG: Hate Speech DA

January/February 2017

The tone hate speech carries makes it inherently harmful


based on the intent to use it.
Alexander, Larry. "Banning Hate Speech And The Sticks And Stones Defense." 1996. Web.
December 05, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=21&ved=0ahU
KEwit1duFqNzQAhWhgVQKHa4tBQc4FBAWCBowAA&url=http%3A%2F%2Fconse
rvancy.umn.edu%2Fbitstream%2Fhandle%2F11299%2F167270%2F13_01_Alexander.p
df%3Fsequence%3D1&usg=AFQjCNEgvB5qnZ9obAVPireygYX_dnr5QQ&sig2=s3gZr
t8IIWMzpsAmIrgKtQ&bvm=bv.139782543,d.cGw>.
There is, admittedly, a common intuition that there is some- thing special-and especially painfulabout hate speech, and this intuition is widespread enough to require explanation. Hate speech
seems different from other denotatively comparable speech because it carries a particular
affective tone, a tone that adds vehemence to the insult it conveys. For this reason, hate speech
may inflict a special sort of pain: the hearer learns not only that the speaker is biased against
persons of his type, but also that the speaker's dislike is so intense that he has chosen to express it
in terms conventionally associated with insult. Does this difference in affective tone identify a
distinction between hate speech and other negative expressions about race and similar
characteristics? The pain it causes still is a product of the hearer's knowledge of the speaker's
views, though the knowledge may differ somewhat from that conveyed by another form of
expression. Moreover, this new increment of knowledge-be- yond or different from that
conveyed by more "civil" expressions-hardly explains the indignation with which opponents of
hate speech have pursued the cause of banning it. One suspects that they are reacting, not to the
extra vehemence attached to epithets, but to the underlying racial, sexual, or other bias. More
importantly, the same sort of pure and vehement disdain conveyed by hate speech can be
achieved easily enough in a different form. Just as the affective tone that epithets usually carry
can be absent in some uses of them, so too can that same affective tone be conveyed as or more
efficiently through superficially polite speech. Consider the examples offered by Gates.19 Surely
Statement (A), the polite putdown, can be much more devastating than Statement (B), the use of
a racial epithet. That is Gates's point, and he is correct. Banning epithets, but not skillful
rhetorical skewerings, would essentially and unjustifiably discriminate against low-brow forms
of expression. Hate speech may convey painful knowledge in a particularly painful way, but it is
not unique in that ability. My conclusion is that what people may wish to avoid when they seek
to ban hate speech in contexts like Skokie, campuses, and the
workplace is knowledge: knowledge that the hate speech is sufficient but often unnecessary to
convey. The knowledge opponents wish to avoid is undoubtedly painful. But should people be
given legal entitlements to be left in ignorance of others' attitudes towards and beliefs about them
when those entitlements entail legal prohibitions of expression?

Champion Briefs

338

NEG: Hate Speech DA

January/February 2017

Hate speech can be a way to silence those you wish to harm.


Alexander, Larry. "Banning Hate Speech And The Sticks And Stones Defense." 1996. Web.
December 05, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=21&ved=0ahU
KEwit1duFqNzQAhWhgVQKHa4tBQc4FBAWCBowAA&url=http%3A%2F%2Fconse
rvancy.umn.edu%2Fbitstream%2Fhandle%2F11299%2F167270%2F13_01_Alexander.p
df%3Fsequence%3D1&usg=AFQjCNEgvB5qnZ9obAVPireygYX_dnr5QQ&sig2=s3gZr
t8IIWMzpsAmIrgKtQ&bvm=bv.139782543,d.cGw>.
The next two types of harm-unequal opportunity and loss of freedom of speech-are much more
problematic. They would be unproblematic if the claim on their behalf were merely that those
who suffer insults are less likely than others to perform up to their potential or to participate in
the public exchange of ideas. That claim may well be true, but it would add little to the claim that
we should protect people from the harm of insult. All of the discussion of unequal opportunity
and "silencing" of speech would just be portentous ways of talking about and cash- ing out the
psychological harm caused by insults. Perhaps, however, there is something more to the claims
of unequal opportunity and silencing of speech. At least some- times, the claim is that the speech
will cause others who hear it or hear of it to lower their opinions of the targets and become more
dismissive of their ideas, their accomplishments, and their needs. The claims of unequal
opportunity and silencing translate into the claim that an insult of the target, even if only an
epithet, carries a propositional content for an audience-for example, "the target and those like her
are unworthy of respect" which pro-positional content might be accepted as true by the audience
to the detriment of the target's status as a student, an employee, and a participant in public
dialogue.

Champion Briefs

339

NEG: Hate Speech DA

January/February 2017

A2 Hate speech DA: Free speech, even when harmful serves


a purpose. The banning of one can spill over to harm others.
ACLU. "Hate Speech On Campus." No Date. Web. December 05, 2016.
<https://www.aclu.org/other/hate-speech-campus>.
Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes
everyone's rights because the same laws or regulations used to silence bigots can be used to
silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights
of civil rights workers, anti-war protesters, lesbian and gay activists and others fighting for
justice. For example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully
defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent
set in that case became the basis for the ACLU's successful defense of civil rights demonstrators
in the 1960s and '70s. The indivisibility principle was also illustrated in the case of Neo-Nazis
whose right to march in Skokie, Illinois in 1979 was successfully defended by the ACLU. At the
time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler's concentration
camps during World War II, commented: "Keeping a few Nazis off the streets of Skokie will
serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the
United States are thereby weakened."

Champion Briefs

340

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA:There have been zero legal applications


of fighting words to hate speech meaning that hate speech is
currently protected by the Supreme Court.
ACLU. "Hate Speech On Campus." No Date. Web. December 05, 2016.
<https://www.aclu.org/other/hate-speech-campus>.

The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New Hampshire, that
intimidating speech directed at a specific individual in a face-to-face confrontation amounts to
"fighting words," and that the person engaging in such speech can be punished if "by their very
utterance [the words] inflict injury or tend to incite an immediate breach of the peace." Say, a
white student stops a black student on campus and utters a racial slur. In that one-on-one
confrontation, which could easily come to blows, the offending student could be disciplined
under the "fighting words" doctrine for racial harassment. Over the past 50 years, however, the
Court hasn't found the "fighting words" doctrine applicable in any of the hate speech cases that
have come before it, since the incidents involved didn't meet the narrow criteria stated above.
Ignoring that history, the folks who advocate campus speech codes try to stretch the doctrine's
application to fit words or symbols that cause discomfort, offense or emotional pain.

Champion Briefs

341

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Symbols of hate are protected by the


constitution. This includes flags and clothes as long as it is
not damaging someone elses property.
ACLU. "Hate Speech On Campus." No Date. Web. December 05, 2016.
<https://www.aclu.org/other/hate-speech-campus>.
Symbols of hate are constitutionally protected if they're worn or displayed before a general
audience in a public place -- say, in a march or at a rally in a public park. But the First
Amendment doesn't protect the use of nonverbal symbols to encroach upon, or desecrate, private
property, such as burning a cross on someone's lawn or spray-painting a swastika on the wall of a
synagogue or dorm. In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as
unconstitutional a city ordinance that prohibited cross-burnings based on their symbolism, which
the ordinance said makes many people feel "anger, alarm or resentment." Instead of prosecuting
the cross-burner for the content of his act, the city government could have rightfully tried him
under criminal trespass and/or harassment laws. The Supreme Court has ruled that symbolic
expression, whether swastikas, burning crosses or, for that matter, peace signs, is protected by
the First Amendment because it's "closely akin to 'pure speech.'" That phrase comes from a
landmark 1969 decision in which the Court held that public school students could wear black
armbands in school to protest the Vietnam War. And in another landmark ruling, in 1989, the
Court upheld the right of an individual to burn the American flag in public as a symbolic
expression of disagreement with government policies.

Champion Briefs

342

NEG: Hate Speech DA

January/February 2017

Governmental obligations are to ensure a respectful culture,


hate speech harms respect.
Brown, Rebecca. "THE HARM PRINCIPLE AND FREE SPEECH." 89 Southern California
Law Review 953 (2016) USC Law Legal Studies Paper No. 15-11. September 27, 2016.
Web. December 05, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584080>.
As a matter of political theory, however, it is possible to construct an understanding of an
appropriate social order in which certain kinds of hate speech cause harm irrespective of their
wounding effects. Jeremy Waldron has made just such a case.227 He argues that it is a primary
obligation on just government to supply a public culture in which all persons are assured of their
status as citizens in good standing.228 As Waldron eloquently elaborates, the provision of
dignity-based assurances is a public good that can be undermined by private citizens.229 The
harm that government would seek to prevent by prohibiting certain kinds of hate speech by
private speakers, accordingly, is the harm to its own ability to meet its responsibility to its
citizens.230 This is a non-censorial theory of harm. This theory of harm would also circumscribe
the kinds of speech that could be restricted while still maintaining the non-censorial character of
the law. While Waldron is not speaking to a distinction between censorial and non- censorial
theories of harm as such, his distinction captures the critical difference for the theory of free
speech that this Article puts forward. His theory is assuredly not based on the goal of protecting
people from being offended, which is a goal not permitted to government.231 Waldron is
confident that the line can be maintained between preventing offense and according the
infrastructure necessary to assure dignity to all citizens.232 At an analytical level, these two
kinds of harm are distinct.

Champion Briefs

343

NEG: Hate Speech DA

January/February 2017

Western politics has a history that supports the obligation to


protect those from harms like the ones implicated in hate
speech.
Brown, Rebecca. "THE HARM PRINCIPLE AND FREE SPEECH." 89 Southern California
Law Review 953 (2016) USC Law Legal Studies Paper No. 15-11. September 27, 2016.
Web. December 05, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584080>.
The role of government in stepping in to prevent and remedy harm has deep historical roots in
our Anglo-American jurisprudence. The republican traditions that left their mark on the
development of American law and history have always relied on the aspiration to develop a wellordered society, which has contemplated a thoughtful reconciliation of private rights and public
welfare.248 Indeed, at one time, any attempt to subsume public welfare in private rights was
considered a perversion of the republican ideal and a reversion to that dark age when
governance was captured by private lords and manors.249 Thus, there was a strong view that
[civil] liberty requires the supremacy of the law.250 While the republican tradition does not
dictate twenty-first century constitutional doctrine, it provides a reminder that rights, critically
important to the equality and liberty that define our contemporary constitutionalism, do not come
without cost in kind. One need not go all the way in arguing that the Constitution requires states
to protect against certain privately inflicted harms251 to acknowledge still that the Supreme
Court should be careful in using the Constitution to preclude it. In giving meaning and scope to
constitutional rights, the discussion and engagement at the heart of ordered liberty are a
necessary part of legitimate judicial review of state and federal law.252

Champion Briefs

344

NEG: Hate Speech DA

January/February 2017

Minority students are not enriched by opposing opinions


when those opinions are hate speech.
Strossen, Nadine. "Regulating RACIST SPEECH ON CAMPUS: A MODEST PROPOSAL?."
Duke Law Journal 484-573. 1990. Web. December 05, 2016.
<http://scholarship.law.duke.edu/dlj/vol39/iss3/3/>.
On the other hand, some minority students97 contend that in the long run, the academic dialogue
might be stultified rather than stimu- lated by the inclusion of racist speech. They maintain that
such speech not only interferes with equal educational opportunities, but also deters the exercise
of other freedoms, including those secured by the first amendment.98 Professor Lawrence argues
that, as a consequence of hate speech, minority students are deprived of the opportunity to
participate in the academic interchange, and that the exchange is
impoverished by their exclusion.99 It must be emphasized, though, that expression subject to
regulation on this rationale would have to be narrowly defined in order to protect the free flow of
ideas that is vital to the academic community; thus, much expression would remain unregulatedexpression which could be sufficiently upsetting to interfere with students'
educational opportunities.

Champion Briefs

345

NEG: Hate Speech DA

January/February 2017

Hate speech is an assault of the 4th Amendment.


Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
On the other end of the spectrum are authors who argue that hate speech attacks individuals'
Fourteenth Amendment right to equality, whichoutweighs any cathartic desire to degrade people
because of their race, ethnicity, sexual orientation, or nationality.6 This
line of thinkingrecognizes the fundamental right to free speech but argues that it
can be restrained when used to intrude on others' dignity rights. The advocates of campus hate
speech codes claim that their aims are not novel. They are construed as a balancing of interests
that is already commonplace with other limitations on speech, such as those enforced
through copyright, libel, conspiracy, and fighting words statutes. Acollege's mission to further
intellectual freedom is unimpaired by limitations on intimidating campus expression;
consequently, some scholars argue that curbing racist and xenophobic speech would not
undermine the core purpose of higher education, the acquisition of truth.9 This school of thought
holds either that hate speech is outside the scope of the First
Amendment or counterbalanced by weightier social considerations.'

Champion Briefs

346

NEG: Hate Speech DA

January/February 2017

Anti-Semitic hate speech is largely present today,


particularly on college campuses.
Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
Hate speech that is overtly derogatory toward vulnerable groups persistently occurs on college
campuses. Jewish students at several U.S. universities have recently been the targets of a
growing number of antisemitic incidents.17 An Anti-Defamation League audit found there were
ninety-four antisemitic incidents on U.S. campuses in 2007, representing about six percent of
total anti-Jewish harassment and vandalism that year." This frequency speaks to the need to
develop constitutionally sound campus hate speech codes designed to prevent the alienation and
intimidation of targeted students. Jewish students at the University of California, Irvine ("UCIrvine") report that antagonism has grown to such an extent that they travel the outskirts of
campus to avoid conflict, are reluctant to engage in activities sponsored by Jewish organizations,
and have trouble focusing on their studies.'9 Imam Mohammad Al-Asi and Amir Abdel Malik
Ali made speeches at a week-long event at UC-Irvine that wedded traditional stereotypes with
modern events, claiming that Jews are in control of U.S. media and responsible for the terror on
September 11, 2001. In one speech Al-Asi asserted, "'[w]e have a psychosis in the Jewish
community that is unable to co-exist equally and brotherly with other human beings."' 20 lIn
2010, the Muslim Student Union at UC-Irvine, which the University subsequently banned,
brought in a speaker who "compared Jews to Nazis" and "expressed support for Hamas,
Hizbullah and Islamic Jihad." 21

Champion Briefs

347

NEG: Hate Speech DA

January/February 2017

Hate speech and fighting words are synonymous, both are


meant to cause harm and incite a reaction.
Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
Fighting words are analogous to hate speech insofar as both are meant to provoke violent
reaction rather than to elicit discussion. In circumstances where fighting words are meant to
intimidate others by reference to historically intimidating symbols, like swastikas or burning
crosses, they enter the realm of hate speech. Neither form of expression seeks to promote debate.
Rather than being discursive, hate messages are meant to be threatening or damaging to
targeted individuals. The enormous import of free speech renders it imperative to take utmost
care to prevent any regulation of hate speech to become an excuse for the
repression of heterodox ideas.80 Unconstitutional infringements against unpopular views were
common during and after the First World War and throughout the Red Scare in the mid-1950s,
when political suppression of Communist or anarchist statements stifled public debate. Hate
speakers do not merely add an unpopular perspective into the marketplace of ideas; if they did no
more than that their views would be protected. Their aim is to incite illegal conduct, to
intimidate, or to harm the reputation of a select group of the public.8 2 Justice Byron R. White's
concurrence in R.A.V v. City of St. Paul dismissed the notion that hate speech is a legitimate form
of political discourse: "Instead, it permits, indeed invites, the continuation of expressive conduct
that is evil and worthless in First Amendment terms ... [C]haracterizing fighting words as a
form of 'debate[]' legitimates hate speech as a form of public discussion., 8 3
*Ellipsis from source

Champion Briefs

348

NEG: Hate Speech DA

January/February 2017

The internet has super charged hate speech on college


campuses, making it more easily spread.
Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
Allowing students or faculty members to intimidate others through hate symbols or expressions
favors the bigots' desire to advocate discrimination and violence while denying the victims'
reasonable expectation of security while on campus. 29 0 The constitutional importance of the
First Amendment to democratic governance and self-assertion does not extend to menacing
messages that tend to diminish the targeted group's sense of security and its ability to enjoy
college commons areas and to attend university sponsored events.291 Students and faculty
members are more likely to think twice before going to hear the college orchestra or heading to
the student union if it requires walking through an area where a cross has recently been
burned, a swastika has been displayed, or a supremacist rally has taken place. Hate speakers are
neither inviting intellectual debate and rejoinder nor seeking political dialogue. Theirs is a
campaign of silencing through intimidation-something that threatens the university's
"marketplace of ideas" and is no benefit to educational interactions.292 Academic
freedom is not alicense for harassment. Neither does hate speech further the pursuit for' truth:
calling Jews vermin, blacks apes, women whores, Native Americans savages, Tutsis
cockroaches, or Mexicans lazy has nothing to do with truth. These derogatory statements are
meant to exclude and stamp certain groups with the label of outsider to the university
community. Derisive speech becomes academically punishable when it is meant to defame,
intimidate, threaten, terrify, or instigate violence.

Champion Briefs

349

NEG: Hate Speech DA

January/February 2017

Allowing hate speech to persist infringes on the rights of


faculty and students on campus, causing daily fear.
Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
Allowing students or faculty members to intimidate others through hate symbols or expressions
favors the bigots' desire to advocate discrimination and violence while denying the victims'
reasonable expectation of security while on campus. 29 0 The constitutional importance of the
First Amendment to democratic governance and self-assertion does not extend to menacing
messages that tend to diminish the targeted group's sense of security and its ability to enjoy
college commons areas and to attend university sponsored events.291 Students and faculty
members are more likely to think twice before going to hear the college orchestra or heading to
the student union if it requires walking through an area where a cross has recently been
burned, a swastika has been displayed, or a supremacist rally has taken place. Hate speakers are
neither inviting intellectual debate and rejoinder nor seeking political dialogue. Theirs is a
campaign of silencing through intimidation-something that threatens the university's
"marketplace of ideas" and is no benefit to educational interactions.292 Academic
freedom is not alicense for harassment. Neither does hate speech further the pursuit for' truth:
calling Jews vermin, blacks apes, women whores, Native Americans savages, Tutsis
cockroaches, or Mexicans lazy has nothing to do with truth. These derogatory statements are
meant to exclude and stamp certain groups with the label of outsider to the university
community. Derisive speech becomes academically punishable when it is meant to defame,
intimidate, threaten, terrify, or instigate violence.

Champion Briefs

350

NEG: Hate Speech DA

January/February 2017

Allowing hate speech to persist infringes on the rights of


faculty and students on campus, causing daily fear.
Tsesis, Alexander. "Burning Crosses On Campus: University Hate Speech Codes." Connecticut
Law Review 617. 2010. Web. December 05, 2016.
<http://lawecommons.luc.edu/facpubs/131/>.
Allowing students or faculty members to intimidate others through hate symbols or expressions
favors the bigots' desire to advocate discrimination and violence while denying the victims'
reasonable expectation of security while on campus. 29 0 The constitutional importance of the
First Amendment to democratic governance and self-assertion does not extend to menacing
messages that tend to diminish the targeted group's sense of security and its ability to enjoy
college commons areas and to attend university sponsored events.291 Students and faculty
members are more likely to think twice before going to hear the college orchestra or heading to
the student union if it requires walking through an area where a cross has recently been
burned, a swastika has been displayed, or a supremacist rally has taken place. Hate speakers are
neither inviting intellectual debate and rejoinder nor seeking political dialogue. Theirs is a
campaign of silencing through intimidation-something that threatens the university's
"marketplace of ideas" and is no benefit to educational interactions.292 Academic
freedom is not alicense for harassment. Neither does hate speech further the pursuit for' truth:
calling Jews vermin, blacks apes, women whores, Native Americans savages, Tutsis
cockroaches, or Mexicans lazy has nothing to do with truth. These derogatory statements are
meant to exclude and stamp certain groups with the label of outsider to the university
community. Derisive speech becomes academically punishable when it is meant to defame,
intimidate, threaten, terrify, or instigate violence.

Champion Briefs

351

NEG: Hate Speech DA

January/February 2017

Hate speech is highly prevalent and under reported on


college campuses.
Jones, Charles. "Regulating Campus Hate Speech: Is It Constitutional?." THE NATIONAL
COUNCIL ON CRIME AND DELINQUENCY. June 1992. Web. December 05, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUK
EwiqkKXR2t7QAhXlz1QKHfFUDIMQFggdMAA&url=http%3A%2F%2Fwww.nccdgl
obal.org%2Fsites%2Fdefault%2Ffiles%2Fpublication_pdf%2Fcampus-hatespeech.pdf&usg=AFQjCNGfVJldLr8uC8jNbFIzUtwtAtxsbw&sig2=aD9ZeZsIrobkaUotq5wqw>.
Although it was not one of the original purposes of the symposium to explore the underlying
nature or causes of campus harassment, an assessment of the nature of ethnoviolence on many of
our col- lege/university campuses was an impor- tant theme of the discussions. Dr. Howard
Ehrlich, Research Director of the National Institute Against Prejudice and Violence, estimated
that 20 percent of students experience some form of eth- nic or racial attack during an academic
year and one-fourth of these students are victimized more than once: Unfortu- nately, 50 to 90
percent of victims do not report the incidents to the university po- lice or administration.5
Moreover, more than half of the minority students experience isolation and dis- crimination and
perceive of the campus atmosphere as one of " prejudice and dis- crimination." 6 One
consequence of these feelings and perceptions is that some ma- jority-race campuses are
becoming " hos- tile envi ronments. and minorities are transferring from predominantly white to
African-American majority colleges.7

Champion Briefs

352

NEG: Hate Speech DA

January/February 2017

Hate speech lead to a myriad of negative effects which harm


the students education.
Jones, Charles. "Regulating Campus Hate Speech: Is It Constitutional?." THE NATIONAL
COUNCIL ON CRIME AND DELINQUENCY. June 1992. Web. December 05, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUK
EwiqkKXR2t7QAhXlz1QKHfFUDIMQFggdMAA&url=http%3A%2F%2Fwww.nccdgl
obal.org%2Fsites%2Fdefault%2Ffiles%2Fpublication_pdf%2Fcampus-hatespeech.pdf&usg=AFQjCNGfVJldLr8uC8jNbFIzUtwtAtxsbw&sig2=aD9ZeZsIrobkaUotq5wqw>.
The equalitarian camp argues that " hate speech" or ethnoviolence victimizes, stigmatizes and
subordinates minority students. Equalitarians contend that the subordination, stigmatization,
negatively impacts on the educational experience in such a way as to deprive them of many
educational benefits of the university. Thus, they are denied equality of treatment, or
equal protection of the law. Many educational administrators and academics believe that
the university has a responsibility for maintaining a campus environment conducive to learning
for all. They are resolute in the it claims supporting the authority of the university to proscribe
communications that are detrimental to that goal. There is, however, some common
ground beneath these divergent view- points. All accept limitations upon certain forms of speech,
i.e., those that cause definable harm or where privacy or property
interests are traduced.16 Property interests include, but are not limited to, dormitory space or
public building surfaces. The most troublesome and least resolvable issues separating these
camps are differences in ideological perspectives. Civil libertarians
exalt the virtues of" individualism" over the interests of enhancing the dignity or
status of groups. The equalitarians assert the necessity for legal interpretation that promotes
values likely to improve the status of subordinated groups. Thus, the debate is whether to
accord primacy to group or individual rights, free speech over equality, and
the security and order of the campus environment over disruption.

Champion Briefs

353

NEG: Hate Speech DA

January/February 2017

Internet has proliferated hate speech on college campuses,


empirics prove.
Garland, Michelle. "Hate Speech Versus Free Speech On College Campuses: Exploring The
Viability Of A Constitutional And." University of Tennessee. No Date. Web. December
05, 2016.
<http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1034&context=ccisymposium>.
Hate mail via the Internet is a prominent problem for university administrators. As one article
states, e-mail threats or hate messages motivated by race, religion or sexual orientation on
college campuses have put administrators in a sticky situation as they try to combat these hightech crimes without infringing on free speech or limiting students' access to the Internet.19 In
1997, the first Internet hate crime trial was brought before the federal government. Richard
Machado, a student at the University of California at Irvine, sent a racist and profane email twice
to approximately 60 Asian-American students in one of the university computer labs. He was
found guilty of a misdemeanor violation.20 Theresa Howards study of hate speech reported,
The Anti-Defamation League, which monitors hate speech on the Web, says complaints are up
this year [2009] more than 200% through July, to 1,512 complaints. This whole era of cyberhate
is one of the biggest challenges we face, says Deborah Lauter, civil rights director of the league.
We've gotten to a place where we made it unacceptable for haters to hate in the public space.
So they turn to the Web, where they can be anonymous.21 However, the consequences of such
action were not all for the worst, despite the unsuspecting victims. For example, In April 1994,
someone stole a University of Michigan student's computer account name and password to gain
access to the Internet. A group purporting to be the Organization for Execution of Minorities
posted a list of vicious threats against African Americans. The messages automatically included
the student's electronic mail address. The next morning, hundreds of angry messages were
flooding into the university. It's a cold, sad, ruthless thing, the student, who requested
anonymity, said in a recent interview. But the way the Net responded with outrage and
directness was the best thing.22 As social media has joined university accounts as channels for
hate speech, such organizations have implemented procedures to address complaints. Facebook
has a hate and harassment team that evaluates messages, videos and the like based on its terms of
service. Similarly, YouTube content is reviewed by its customer support department based on its
terms of service. In both cases, if terms of service are violated, the content will be removed.
However, YouTube also provides the opportunity for users to flag content involving
pornography, graphic violence, illegal acts, and the like, for review of the customer support
department.23

Champion Briefs

354

NEG: Hate Speech DA

January/February 2017

Hate speech is statistically very prevalent on college


campuses.
Garland, Michelle. "Hate Speech Versus Free Speech On College Campuses: Exploring The
Viability Of A Constitutional And." University of Tennessee. No Date. Web. December
05, 2016.
<http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1034&context=ccisymposium>.
In 2009, 11.4 percent of hate crimes occurred at schools or colleges. Of the 3,199 motivated by
racial bias, 12.4 percent occurred at schools or colleges. Of the 1,303 motivated by religious bias,
12.9 occurred at schools or colleges. Of the 1,223 motivated by sexual-orientation bias, 10.1
percent occurred at schools or colleges. Of the 777 motivated by ethnicity/national origin bias,
8.2 percent occurred at schools or colleges.24

Champion Briefs

355

NEG: Hate Speech DA

January/February 2017

Anti-Muslim rhetoric on the internet linked to hate crimes in


real life.
Sacirbey, Omar. "REPORT: Internet Hate Speech Can Lead To Acts Of Violence." Washington
Post. May 06, 2014. Web. December 06, 2016.
<https://www.washingtonpost.com/national/religion/report-internet-hate-speech-canlead-to-acts-of-violence/2014/05/06/9a9d9e60-d52c-11e3-8f7d7786660fff7c_story.html?utm_term=.8d5b5daa339d>.
Anti-Muslim hate speech on the Internet is commonplace and can motivate some people to
commit acts of violence against Muslims, according to a report released Tuesday (May 6) by
Muslim Advocates, a legal and advocacy group in San Francisco. When you have threatening
comments online and they go unchecked, people start thinking its acceptable, said Madihha
Ahussain, an attorney and the reports lead author. And it doesnt take long to figure out that
what becomes acceptable online becomes acceptable in the real world. The report contains
examples of hate speech and how it can lead to violence, as well as how victims of online hate
speech can report it and counter it. The report aims to help educate parents, students, youth,
community leaders, Internet companies and policymakers on how to counter online hate
speech. Ahussain said that anti-Muslim websites give like-minded people a place to gather and at
the same time win new supporters through their posts. As an example, Ahussain cited the
Facebook page of anti-Muslim blogger Pamela Geller, which she said grew from roughly 19,000
followers in July 2013 to some 78,000 people as of late April. The report also cites the example
of Robert James Talbot Jr., a Texas man who created a Facebook page for the American
Insurgent Movement, whose stated aim was to start a revolution and overthrow the U.S.
government. Talbot was a regular reader of Gellers Atlas Shrugs blog. FBI agents arrested
Talbot on March 27 on allegations that he plotted to blow up mosques and other buildings. The
report said most social media platforms include features where people can report what they
perceive to be violations of speech guidelines. I believe they take this very seriously because
they want to have a place where people dont feel threatened by others, Ahussain said.

Champion Briefs

356

NEG: Hate Speech DA

January/February 2017

Anti-Muslim rhetoric on the internet linked to hate crimes in


real life.
Sacirbey, Omar. "REPORT: Internet Hate Speech Can Lead To Acts Of Violence." Washington
Post. May 06, 2014. Web. December 06, 2016.
<https://www.washingtonpost.com/national/religion/report-internet-hate-speech-canlead-to-acts-of-violence/2014/05/06/9a9d9e60-d52c-11e3-8f7d7786660fff7c_story.html?utm_term=.8d5b5daa339d>.
Anti-Muslim hate speech on the Internet is commonplace and can motivate some people to
commit acts of violence against Muslims, according to a report released Tuesday (May 6) by
Muslim Advocates, a legal and advocacy group in San Francisco. When you have threatening
comments online and they go unchecked, people start thinking its acceptable, said Madihha
Ahussain, an attorney and the reports lead author. And it doesnt take long to figure out that
what becomes acceptable online becomes acceptable in the real world. The report contains
examples of hate speech and how it can lead to violence, as well as how victims of online hate
speech can report it and counter it. The report aims to help educate parents, students, youth,
community leaders, Internet companies and policymakers on how to counter online hate
speech. Ahussain said that anti-Muslim websites give like-minded people a place to gather and at
the same time win new supporters through their posts. As an example, Ahussain cited the
Facebook page of anti-Muslim blogger Pamela Geller, which she said grew from roughly 19,000
followers in July 2013 to some 78,000 people as of late April. The report also cites the example
of Robert James Talbot Jr., a Texas man who created a Facebook page for the American
Insurgent Movement, whose stated aim was to start a revolution and overthrow the U.S.
government. Talbot was a regular reader of Gellers Atlas Shrugs blog. FBI agents arrested
Talbot on March 27 on allegations that he plotted to blow up mosques and other buildings. The
report said most social media platforms include features where people can report what they
perceive to be violations of speech guidelines. I believe they take this very seriously because
they want to have a place where people dont feel threatened by others, Ahussain said.

Champion Briefs

357

NEG: Hate Speech DA

January/February 2017

Hate speech has been emboldened on college campuses ever


since Trumps victory.
The Journal Of Blacks In Higher Education. "White Supremacists On College Campuses
Emboldened By Trump Victory." The Journal of Blacks in Higher Education. November
18, 2016. Web. December 06, 2016. <https://www.jbhe.com/2016/11/whitesupremacists-on-college-campuses-emboldened-by-trump-victory/>.
There has been a rash of racial incidents on college campuses in the aftermath of Donald
Trumps election to the presidency. Many of these incidents have involved hate crimes directed
against Muslims. But racial hate directed against African Americans has occurred on several
campuses. At Lebanon Valley College in Annville, Pennsylvania niggers#Trump was found
written on the building housing the Womens Services and Gender Resource Center. The
building also serves as student residence hall. African Americans make up 3 percent of the
undergraduate student body at the college. Racist fliers with the headline Why White Women
Shouldnt Date Black Men were posted on the campuses of Southern Methodist University in
Dallas and the University of Oklahoma. At Baylor University in Waco, Texas, a Black woman
student who was born in Zambia said she was shoved on her way to class by a man who said,
No niggers allowed on the sidewalk. The man then stated, I am just trying to make America
great again. At Wake Forest University in Winston-Salem, North Carolina, a group of people
ran through the South Campus shouting the word Niggers. Students at Abilene Christian
University in Texas were expelled after posting of a photograph of a White student in blackface
on social media. At Texas State University in San Marcos, offensive posters were put up at
several spots on campus. The text of the poster read: Now that our man Trump is elected and
Republicans own both the Senate and the House time to organize tar & feather vigilante squads
and go arrest & torture those deviant university leaders spouting all this diversity garbage. A
Black woman student at Villanova University in Pennsylvania, reports that she was assaulted by
a group of White males who yelled Trump. Trump. Trump!

Champion Briefs

358

NEG: Hate Speech DA

January/February 2017

Hate Crimes are in the high hundreds on college campuses


(and these are only the federally repored ones). The most
common include graffiti, assault, and intimidation.
US Department Of Justice, US Department Of Education. "Indicators Of School Crime And
Safety: 2015." No Date. Web. December 06, 2016.
<http://nces.ed.gov/programs/crimeindicators/>.
In 2013, there were 781 criminal incidents classified as hate crimes that occurred on the
campuses of public and private 2-year and 4-year postsecondary institutions which were reported
to police and security agencies (table 23.1). e most common type of hate crime reported by
institutions was destruction, damage, and vandalism (364 incidents; hereafter referred to as
vandalism in this indicator), followed by intimidation (295 incidents), simple assault (89
incidents), larceny (15 incidents), forcible sex offenses (7 incidents), aggravated assault (6
incidents), burglary (4 incidents), and robbery (1 incident; gure 23.1). For several other types of
on-campus crimes namely, murder, negligent manslaughter, nonforcible sex offenses, motor
vehicle theft, and arsonthere were no incidents classified as hate crimes in 2013. e distribution
of on-campus crimes classified as hate crimes in 2013 was similar to the distributions in previous
years. Vandalism, intimidation, and simple assault constituted the three most common types of
hate crimes reported by institutions in every year from 2009 to 2012. For example, of the 787
criminal incidents classified as hate crimes in 2012, there were 403 vandalisms, 268
intimidations, and 79 simple assaults. Also similar to 2013, there were no reported incidents of
murder, negligent manslaughter, nonforcible sex offenses, or motor vehicle theft classified as
hate crimes in any year from 2009 to 2012.

Champion Briefs

359

NEG: Hate Speech DA

January/February 2017

Race is nearly always the motivating factor for hate crimes


on college campuses.
US Department Of Justice, US Department Of Education. "Indicators Of School Crime And
Safety: 2015."No Date. Web. December 06, 2016.
<http://nces.ed.gov/programs/crimeindicators/>.
For the three most common types of hate crimes reported in 2013 (vandalism, intimidation, and
simple assault), the most frequent category of motivating bias associated with these crimes was
race. Race-related hate crimes accounted for 41 percent of reported vandalisms classified as hate
crimes (151 incidents), 37 percent of reported intimidations (110 incidents), and 38 percent of
reported simple assaults (34 incidents; gure 23.2 and table 23.1). e second most frequent
category of bias associated with all three types of crimes was sexual orientation. thirty-one
percent of vandalism hate crimes (112 incidents), 23 percent of intimidations (69 incidents), and
29 percent of simple assaults (26 incidents) were classified with sexual orientation as the
motivating bias. Among the other categories of bias, 13 percent of vandalism hate crimes were
associated with religion (48 incidents), 10 percent with ethnicity (37 incidents), 4 percent with
gender (14 incidents), and 1 percent with disability (2 incidents). For intimidation hate crimes,
17 percent were associated with ethnicity (49 incidents), 13 percent with gender (37 incidents), 8
percent with religion (24 incidents), and 2 percent with disability (6 incidents).

Champion Briefs

360

NEG: Hate Speech DA

January/February 2017

The US is behind on regulating hate speech per international


codes.
Carmi, Guy. "DIGNITY VERSUS LIBERTY: THE TWO WESTERN CULTURES OF FREE
SPEECH." University of Virginia School of Law. August 22, 2008. Web. December 07,
2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1246700>.
The United States is out of sync with international norms pertaining to hate speech restriction. It
consistently rejects provisions calling for restricting speech by expressing reservations at the
time of signing, as well as during the ratification process of such treaties by the Senate. A good
example of this approach is found in the U.S. treatment of the speech affecting components of
the International Convention on the Elimination of All Forms of Racial Discrimination.471
Although the U.S. has been a driving force behind the Convention, its reservations upon
signature and ratification expose the gap in the limits on free speech restriction between the U.S.
and other countries. The U.S. exempted itself from obligations under the Convention to
criminalize hate speech, as well as incitement to violence and a ban on organizations and parties
that incite racial violence.472 Other examples include Article 20 of the International Covenant
on Civil and Political Rights and the Protocol on the Criminalization of Acts of a Racist or
Xenophobic Nature.473 The United States virtually stands alone against an international
consensus banning certain kinds of hate speech.474

Champion Briefs

361

NEG: Hate Speech DA

January/February 2017

Silencing certain speech on campus turns the campus into a


political showdown instead of a place of education and
debate.
Riley, Naomi. "Campus Speech Codes Dont Fix Hate Speech, They Stifle True Debate."
Foundations for Individuals Rights in Education. August 06, 2013. Web. December 07,
2016. <https://www.thefire.org/campus-speech-codes-dont-fix-hate-speech-they-stifletrue-debate/>.
The situation is deplorable, but before we advise speech codes for students (a step that would
certainly meet with constitutional challenges), it would be worth it to think about how things
came to this point. For one thing, colleges and universities have allowed professors to turn to
their classrooms into political arenas, bringing up topics that are plainly irrelevant to the subject
at hand. A Jewish student at Columbia was recently advised not to take a particular Middle East
Studies class because the professor was going to be sure to offend her. Entire disciplines have
become politicized as well particularly Middle East Studies. And those who deviate from the
orthodoxy that the State of Israel is oppressing the Palestinian people and does not deserve to
exist are vilified. The universities have not done very much to promote an atmosphere of
civility which is different from promoting a speech code. In 2010, David Horowitz came to
UC Santa Barbara and asked the audience whether any members of the Muslim Student
Association would denounce Hamas? In response one audience member shouted No and
several students and faculty proceeded to heckle Horowitz. The fact that faculty were involved in
shouting down a speaker should strike us as particularly problematic. Lets say the students dont
know any better. But when someone is invited as an officially sponsored lecturer on a campus,
the choices for registering disagreement should be a) not attending, b) picketing outside, c) not
applauding at the end of the speech, d) asking pointed questions, or e) offering an alternative
speech at the same time or a later event with a speaker who would refute those views. Those are
part of the exercise of free speech. Administrators should not permit hecklers and faculty
members who try to shout down a speaker should be subject to some sort of sanction. They are
setting an extraordinarily poor example. Ideally, university administrators should be promoting
real debates on the hot-button topics of the day. Too few students even attend lectures by
speakers with opposing viewpoints (except with the intention of heckling). It would be useful to
for students to listen to two speakers (even two faculty members) participate in a formal debate.
One could even (along the lines of the Intelligence Squared Debates) ask audiences to vote for
the winner at the end. (At Intelligence Squared events, the winner is determined by the side that
gains the most votes from the beginning of the speech to the end). Universities are ideally
training informed citizens. As citizens we are entitled to speak our minds, but we are also tasked
with being informed about both sides of the important issues of the day. Many institutions of
higher education are failing to promote this kind of understanding.

Champion Briefs

362

NEG: Hate Speech DA

January/February 2017

Hate speech is intrinsically tied to the harm and devaluation


of others.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
The resurgence of intolerance2s has taken a variety of forms, from discriminatory conduct to
harassing verbal and symbolic speech and expression.29 Abusive speech consists of epithets or
insults30 reflecting stereotypical notions about race, ethnic origin, religion sex and sexual
preference. The speaker of epithets and insults intends to degrade and to disparage whether the
epithets or insults are spoken against another in a one-on-one situation or against others in a
group situation. In both scenarios, the is a negative one, attributing what are thought to be less
desirable values or human qualities32 to an individual or to a group and conveying unfavorable
appraisals about individual worth based solely upon group membership.33 Hate epithets and
insults thus put down minorities and outsiders,34 marginalize their value as com- munity
members,35 and reinforce bigoted notions that certain group memberships constitute a sufficient
enough reason to deny equal treatment and opportunity.36

Champion Briefs

363

NEG: Hate Speech DA

January/February 2017

Epithets draw on historically sensitive stereotypes that can


elicit emotional or mental distress.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
Epithets and insults based on stereotypical traits associated with historically vulnerable groups
have devastating effects on the individuals against whom the assaultive words are directed.
The 4o most direct harm is immediate mental or emotional distress. Like a slap in the face, a
derogatory epithet or insult causes instantaneous injury, inner turmoil,41 in large part because it
derides some unalterable aspect of the recipient's self-identity, such as race or sex. Professor
Delgado has noted that insults of this nature are always a dignitary affront, a direct violation of
the victim's right to be treated respectfully. Our moral and legal sys- tems recognize the principle
that individuals are entitled to treatment that does not denigrate their humanity through
disrespect for their privacy or moral worth... A racial insult is a serious transgression of this
principle because it derogates by race, a characteristic central to one's self_image.42 The
ultimate impact of an abusive insult, whether based on race or some other constitutive
component of identity, is to deny the vic- tim a sense of dignity, resulting in loss of self-esteem,
personal security, and sense of community membership.'"
*Ellipsis from source

Champion Briefs

364

NEG: Hate Speech DA

January/February 2017

Hate speech can cause long term harm-even chills victims


own speech.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
From the victim's perspective, hate messages and their stigmatization also cause long-term
psychological harm.44 Hate messages ':may cause long-term emotional pain because they draw
upon and intensify the effects of the stigmatization, labeling, and disrespectful treatment that the
victim has previously under- gone."45 Feelings of isolation and aloneness are not uncommon of
hate messages also reinforce and. based upon certain group member- ships, causing victims to
forego opportunities, to avoid certain places, to engage in self-censorship of speech, and
generally to modify their behavior, demeanor, and outlook.47 Other than changing their own
behavior and daily routine, victims of hate speech have avenues of redress; physical
assault is inappropriate forbidden, and the traditional remedy of more speech within the
marketplace of ideas is unlikely to alleviate the hurt or to provide relief.48 Epithets and insults
based on stereotypes also affect the speaker and other individuals who may be exposed to the
verbal assaults. Once a speaker disparages another with words the may become isolated and
experience strengthened commitment to the underlying prejudice that fueled the insult in
the first a speaker's racial, sexual, or other injurious invective IS not without impact on nontarget
individuals. For members of the dominant group, feelings of disassociation and guilt may result
from hate messages.50 More significantly, dominant group members may consider the alleged
inferiority of the victim and the victim's group to be a real possibility.51

Champion Briefs

365

NEG: Hate Speech DA

January/February 2017

The damage by hate speech has significant harms in relation


to dignity.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
The emotional distress, affronts to dignity, and feelings of inferiority and disconnectedness from
community, in addition to the undesirable consequences to the speaker and to others, pro- duced
by hate messages have serious implications for our under- standing of how students learn and,
therefore, for the practice of education and how schools shape their ethos. The psychological
well-being of a student is a prerequisite to meaningful learning experiences; to the extent that a
student harbors feelings of subor- dination and inadequacy, learning will be impaired. This
insight was central to the Supreme Court's decision in Brown v. Board of Education,54where the
Court expressly noted that "[a] sense of inferiority affects the motivation of a child to learn,"
which in tum retards the child's "educational and mental development."55 An important aspect of
the Court's equal protection analysis and con- sideration of psychic injury was context, for the
severity of injury is dependent on the context in which it occurs.56 In the school con- text, the
safeguarding of a student's psychological well-being, which is a compelling state
interest,57 is critical. The emotional stability and psychological health of students are of
constitutional magnitude and must figure centrally in fashioning responses to abusive epithets
and insults.

Champion Briefs

366

NEG: Hate Speech DA

January/February 2017

Universities are particularly bad place to harbor hate speech


given the transition state students are in.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
The special nature or context of educational institutions has been grasped by those colleges and
universities considering the First Amendment and disparaging epithets and insults. Professor
Matsuda has provided a description of colleges and universities that is illuminating in its
articulation of their unique features: Universities are special places, charged with pedagogy, and
duty-bound to a constituency with special vulnerabilities. Many of the new adults who come to
live and study at the major universities are away from home for the first time, and at a vulnerable
stage of psychological development. Students are particularly dependent on the university for
community, for intellectual development, and for self-definition. Official tolerance of racist
speech in this setting is more harmful than generalized tolerance in the community-at-large. It is
harmful to student perpetrators in that it is a lesson in getting-away-with-it that will have lifelong
repercussions. It is harmful to targets, who perceive the university as taking sides through
inaction, and who are left to their own resources in coping with the damage wrought. Finally, it
is a harm to the goals of inclusion, education, development of knowledge, and eth- ics that
universities exist and stand for. Lessons of cynicism and hate replace lessons in critical thought
and inquiry.58 The higher education setting thus has two particularly distinctive features: a
pedagogical mission and students, generally speaking, of a relatively young age who are not
intellectually or emotionally fully grown.59 It is within this learning environment, and the
school's all-encompassing concern for positive student develop- ment, that the emotional and
psychological harm caused by abusive insults has become the impetus for weighing First
Amendment rights against equality principles.

Champion Briefs

367

NEG: Hate Speech DA

January/February 2017

Hate speech is the intersection of free speech and equality


rights.
Alison, Myhra. "The Hate Speech Conundrum And Public Schools." North Dakota Law Review.
1992. Web. December 07, 2016. <http://repository.law.ttu.edu/handle/10601/632>.
The price of allowing harassing epithets and insults within the school setting is some
diminution in equality,77 another value that figures centrally in the hierarchy of constitutional
values. Hate messages directed at students who are members of particular groups cause stigma,
one of the very evils that modern equal protection principles seek to eradicate.78 The
problem is that "[t]he constitutional commitment to equality and the promise to abolish
badges and incidents of slavery are emptied of meaning when tar- get-group members
must alter theirbehavior because of hate group activity."79 Thus, when speech reduce8 itself
to the level of epithets and slurs attacking race, ethnicorigin, religion, sex, and sexual
preference, it is precisely at this point that free speech val- ues and equality values
cross and tension develops. In addition, it is precisely at this point that the communitarian vision
directly conflicts with the libertarian vision. For this reason, proponents of the regulation
of hate speech "must choose whether to fight this battle purely in Aristotelian [or
communitarian] terms orwhether to meet the libertarians halfway by trying to convince the libertarians that the communal goals of tolerance and equality can
beaccommodated within the libertarian framework of free expression and an
open marketplace." The libertarian commitment to neutral principle881 of freedom of 8peech,
however, need not become an obsession82 that forecloses the possibility of regulating hate
speech witlJ?1 the public schools in a permissible way in order to advance equality and to
minimize the stigmatization of students.
*Ellipsis from source

Champion Briefs

368

NEG: Hate Speech DA

January/February 2017

Majority of students want open learning environments and


bans on hate speech and slurs.
PEN America. "And Campus For All.". October 17, 2016. Web. December 07, 2016.
<https://pen.org/on-campus>.
A second study of college students on free speech, conducted by the Knight Foundation and
Washingtons Newseum in early 2016, surveyed more than 3,000 students. Seventy-eight percent
say they favor an open learning environment that exposes students to all types of speech and
viewpoints, including those that may be offensive. Just 22 percent say they favor colleges
prohibiting speech that could be offensive or biased against certain groups. Yet 69 percent say
colleges should enact policies to restrict slurs and other language thats intentionally offensive to
certain groups; 63 percent say that such policies could extend to restricting Halloween costumes
based on stereotypes. Yet only 27 percent say that colleges should be able to restrict speech
expressing political views that might o end or upset certain groups. Forty-nine percent say that an
expectation that the press would be unfair in its reporting is a legitimate reason to deny the media
access to a campus protest.71

Champion Briefs

369

NEG: Hate Speech DA

January/February 2017

AFF: Free speech empowers minorities--it shouldn't be


restricted.
Morrissey, Anna. "Free Speech In The Quad: Why First Amendment Oppression Is Not The Path
To Racial Justice." Education Law and Policy. May 03, 2016. Web. December 07, 2016.
<http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2016/Morrissey.pdf
>.
It is a mistake to suppress speech in the name of equality. Free speech and association are tools
for the minority, whoever they are at a given moment. The First Amendment empowers
individuals. It empowers individuals to express their views, to dissent from majority policies,
and to organize politically to advance their interests. Free speech protected Martin Luther King
Jr., Malcolm X, Susan B. Anthony, and many other civil rights activists. The last thing a
minority group should seek is the suppression of free expression.

Champion Briefs

370

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Hate speech doesn't contract others'


formal autonomy, whereas speech restrictions do violate
formal autonomy.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. December 09, 2016. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Democratic legitimacy, I believe, and certainly the civil libertarian commitment, requires that, in
advancing peoples substantive autonomy as well as in advancing substantive egalitarian aims
and other proper policy goals, the legal order neither have the purpose to nor use general means
that disrespect peoples formal autonomy (or their formal equality). On this view, respect for free
speech is a proper constraint on the choice of collective or legal means to advance legitimate
policy goals. Typically racist hate speech embodies the speakers at least momentary view of the
world and, to that extent, expresses her values. Of course, her speech does not respect others
equality or dignity. It is not, however, her but the states legitimacy that is at stake in evaluating
the content of the legal order. Laws purposeful restrictions on her racist or hate speech violate
her formal autonomy, while her hate speech does not interfere with or contradict anyone elses
formal autonomy even if her speech does cause injuries that sometimes include undermining
others substantive autonomy. For this reason, prohibitions on racist or hate speech should
generally be impermissible even if arguably permissible in special, usually institutionally
bound, limited contexts where the speaker has no claimed right to act autonomously such as
when, as an employee, she has given up her autonomy in order to meet role demands that are
inconsistent with expressions of racism.

Champion Briefs

371

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Neg burden is to prove that restrictions


on hate speech will be enforced effectively.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043>.
The third point requires two doubtful claims. It must assume that political forces will be able to
secure adoption and adoption of the needed prohibitions on hate speech in those situations where
the prohibitions are needed and could be causally effective as a means to prevent virulent racism
or genocide. Clearly, many places in the modern world have adopted such prohibitions. The
possibility is real, however, that the prohibitions will be adopted and enforced only in places
where not needed. Still, maybe the proper purpose of international conventions requiring their
adoption is precisely to add to the political pressure to adopt such restrictions, thereby increasing
the likelihood of their adoption where needed. Even more problematic, to be an effective place to
intervene, adopted prohibitions must be efficacious in reducing the likelihood of serious racist
evils. Most obviously, this result probably requires sufficient enforcement of the prohibitions
against the relevant targets. Maybe, however, their mere adoption could help create a cultural
climate where racist speech, and even more importantly, virulent racist practices, are
unacceptable. The question of whether to expect effective enforcement is made more difficult
because it is not clear at what stage enforcement would be meaningful in preventing the polity
from devolving in an unacceptably racist direction or whether enforcement could be effective at
reversing cultural directions. Active enforcement (against appropriate targets) is likely only if
racist groups have not become too established. By the time Nazis were gaining power, or during
the year immediately preceding the genocide in Rwanda, effective enforcement was unlikely. At
the relevant time, enforcement would likely either be blocked, create a backlash against the
enforcers and sympathy for the suppressed racists, or as will be discussed below, enforced
primarily against unpatriotic or racist speech of those most needing protection Jews or
Tutsis, for example, or against African-Americans in the United States or Algerians in France.

Champion Briefs

372

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Hate speech regulations are ineffective.


Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Thus, the hope of those favoring hate speech prohibitions must be that enforcement will be
meaningful and effective at a quite early stage. Pessimism about this speculative hope seems
justified. First are generic doubts about the likelihood of effective legal enforcement. More
important, however, is the likelihood that at this most relevant stage the speech that meaningfully
contributes to developing or sustaining racism will be subtle, quotidian and, to many people,
seemingly inoffensive or at least not seriously offensive speech. This speech is likely to fly
under the legal radar screen and, in any event, meaningful enforcement of prohibitions against
this speech is even less likely. Thus, even given a belief that racist speech contributes
significantly to virulent racism and genocidal practice, my hypothesis is that at earlier stages
legal prohibitions will not cover or be effectively enforced against the most relevant speech and
at later stages enforcement will not occur, will be counter-productive in creating martyrs for a
racist cause, or will focus on the wrong targets.

Champion Briefs

373

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Hate speech regulations could result in


more racism long-term.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Even if there is reason to doubt the effectiveness of legal prohibitions in preventing the reign of
racist practices, the horrific evil feared (as well as the noxious quality of speech properly covered
by a prohibition) recommend that error should be on the side of caution. Here is where the fourth
point about possible negative effects of restrictions on hate speech, preliminarily suggested by
some comments above, is crucial. Caution is often given as a reason to prohibit hate speech. This
reason, however, depends crucially on rejecting two further real empirical possibilities: (i) that
the prohibitions themselves will contribute to the racist nature of society and (ii) that adoption of
hate speech prohibitions will make other, more effective interventions against the development
of a racist, genocidal culture or polity less likely or less effective. Of course, the opposite
empirical results are possible. Advocacy of and then adoption of hate speech prohibitions and
pressure for their enforcement could invigorate an anti-racist politics that makes other, maybe
even more significant interventions, more likely. This scenario is, however, at best questionable.
And, if the first possibility turns out to be true, adoption of hate speech prohibitions could
contribute to the evil outcomes that a country must try to prevent. That is, official legal
suppression of evil speech could generate the very evil that motivates suppression.

Champion Briefs

374

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Empirics are key.


Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Given these alternative empirical possibilities, the debate is not between idealistic but uncaring
liberal defenders of free speech and fierce opponents of the worst forms of racism. Rather the
pragmatic debate is about different empirical predictions concerning the most effective strategy
for opposing racism. Empirical evidence of which scenario is most likely should be welcome.
Maybe the evidence exists, thought I do not know of it at a level where confidence on a
particular conclusion is warranted. Thus, Part III describes considerations supporting the
empirical hypothesis that speech prohibition will actually exacerbate racist practice. Finally, if
the issue remains in doubt, I will consider which direction merits our gamble.

Champion Briefs

375

NEG: Hate Speech DA

January/February 2017

The normalization of hate speech within culture paints


certain individuals as out-groups that can justify further
oppressive policies. Nazi Germany proves.
Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
What began as isolated bigotry became embedded in popular German culture by the 1890s."'
Many Reichstag deputies argued that Jewish property should be confiscated and distributed to
the German poor.122 By 1893, anti-Semitic political parties had a sixteen-person faction in the
Reichstag."i Anti-Semitic university organizations, such as the Union of German Students and
the Academic League of Gymnasts, enjoyed popular support among students and provided a
forum for spreading racism to intellectuals. 24 Libraries contained extensive collections of antiSemitic literature for popular consumption.l" In sum, anti-Semitism permeated Germany at the
turn of the century.2 Animosity toward German Jews intensified after the first World War.127
Jewish entrepreneurs were widely blamed for the rise in inflation and shortages of vital goods.
Those accusations contributed to the periodic looting of Jewish businesses. 28 Evangelical
preachers participated in blaming Jews for Germany's postwar misfortunes.29 The repetitiveness
of those messages made development and implementation of the Nazi exterminationist
propaganda easier."' The democracy of the post-World War I Weimar Republic gave way to
totalitarianism under Nazi rule. The Nazis often built their anti-Semitic propaganda on slogans
developed decades beforehand. Julius Streicher, who published the savagely anti-Semitic
newspaper Der Stirmer,3 ' ordered that posters be raised throughout the Third Reich with the
inflammatory message, "Die Juden sind unser Unglick" ("The Jews are our misfortune"). This
slogan was a verbatim restatement of the 1879 slogan of Heinrich von Treitschke, a university
professor who helped legitimize anti-Semitism in intellectual circles.'33 Streicher's antiSemitism can be traced even further back in time. Before being sentenced to death by hanging,'
he "told the Nuremberg tribunal that Luther had long before said what he himself had to say
about the Jews, and much more sharply."3 ' The Nazis developed and systematized animosity
against Jews that had been developing many years prior to the advent of the Third Reich. The
attempt to murder all Jews, the "Final Solution," began sometime in 1941;136 however, this plan
was in the making for years prior to its commencement. National Socialists had advocated this
goal before and after Hitler became German Chancellor in 1933.1" On November 24, 1938, the
SS periodical Schwarze Corps announced the plan to exterminate (Ausrotten) and annihilate
(Vernichtung) all Jews.'38 Moreover, Hitler told Czechoslovakian Foreign Minister Chvalkovsky
on January 21, 1939, "We are going to destroy the Jews.- ' 39 Hitler's diabolical plan and its
implementation should be compared with Luther's ominous directives of how to deal with Jews.
For example, Luther advocated burning synagogues, 4' and nearly four hundred years after his
pronouncement, when ancient anti-Jewish sentiments were at their apex, the Nazis and their
sympathizers did just that. During the night of November 9-10, 1938, known as Kristallnacht

Champion Briefs

376

NEG: Hate Speech DA

January/February 2017



Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
(Night of Broken Glass), frenzied crowds throughout Germany-stirred on by years of antiSemitic propaganda that had become part of their psyche-set fire to a hundred synagogues,
destroyed shops and houses, raped Jewish women, and killed Jews indiscriminately.14 '
Furthermore, following Luther's ideas, the Nazis denied that Jews were members of a distinct
religion' and denied Jews the right to practice Judaism.' By the time the Nazis came to power, the
malevolent vitriol that German leaders and thinkers spewed against Jews had become deeply
entrenched in German culture. The Nazis were not elected in a cultural vacuum. Hitler could not
have come to power and guided the Final Solution without the support and sadistic compliance
of hundreds of thousands of Germans. Years of anti-Semitic indoctrination prepared Germans for
Hitler's plan.'4' The most basic ethical principles, such as the one adjuring people not to kill
innocent humans, were broken down by centuries of libel directed against Jews. 5 Synagogue
burnings, physical attacks against Jews, and participation in mass deportations became
acceptable for Germans, in large part because prior anti-Semitic rhetoric and systematic
discrimination had dulled their consciences. 146
*Ellipsis from source

Champion Briefs

377

NEG: Hate Speech DA

January/February 2017

A2 Couldn't possibly happen to American Democracy: Your


claims are empirically false- hate speech has justified a long
history of land grabs and displacement of Native Americans
because of the belief conveyed through speech that they were
subhuman.
Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
In practical terms, conquerors and explorers used negative images of Native Americans to justify
unlimited land grabs.'56 Until the nineteenth century, Whites justified land expropriations by
claiming that civilized Whites had the right to title over lands; on the other hand, the native
"savages," who were thought to be merely hunters and gatherers, were denied the right of
ownership to their ancestral land.157 The colonists argued that as hunters Native Americans had
no fixed ownership interests, but rather migrated with the game.' This often repeated
characterization blinded American social consciousness to the fact that some indigenous tribes
had developed farming to such an extent that they helped pilgrims survive in the New World by
teaching them farming techniques.'59 Moreover, the United States government justified taking
land from Native Americans on the basis of racist claims of White superiority that developed
through the use of hate speech. Luke Lea, the Commissioner of Indian Affairs from 1850-1853,
typified this attitude: When civilization and barbarism are brought in such relation that they
cannot coexist together., it is right that the superiority of the former should be asserted and the
latter compelled to give way. It is, therefore, no matter of regret or reproach that so large a
portion of our territory has been wrested from the aboriginal inhabitants and made the happy
abodes of an enlightened and Christian people.1 60 Frontiersmen rationalized murdering Native
Americans and violating their property rights by drawing upon images of unenlightened and
savage Indians. 6' Popular utterances about Native Americans shaped the views of English
settlers. Using linguistic paradigms that characterized Native Americans as barbarous, the
settlers committed inhumane and uncivilized acts against America's indigenous peoples. An
early example of the dangerous effect of the colonists' conception of White superiority over
Native Americans was the Pequot War of 1637.162 Animosity arose between the Connecticut
settlers and the Pequots who possessed what is now central Connecticut.163 The War began as
revenge for the murder of a White trader by Pequot tribal members."M However, the revenge
perpetrated by the White vigilantes was greatly disproportionate.' At the Mystic River battle, the
colonists set aflame wigwams, causing the death of several hundred Pequots.'66 The colonists'
hatred was so vehement that they continued military operations until the Pequot nation ceased to
exist.167 All but a few of the remaining Pequots were sold into slavery." Those who committed
the massacre were greeted as heroes after their senseless carnage. 9 Life among the colonists did
not, in many cases, improve the lives of Native Americans. Tribes, like the Seminoles, were

Champion Briefs

378

NEG: Hate Speech DA

January/February 2017



Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
forcibly relocated thousands of miles from their ancestral lands because they were not believed
to have deep attachment to those territories."' During times of war, retreating Indians were
cruelly and unnecessarily slaughtered, regardless of their genders and ages. 71 Characterizing
America's relations with Native Americans, Charles Francis Adams 72 wrote, "the knife and the
shotgun have been far more potent and active instruments in dealings with the inferior races than
the code of liberty." 73 Chief Justice John Marshall's opinion in Johnson v. M'Intosh T "
acknowledged and maintained the disregard for Native American human and property rights. In
Johnson, the Court addressed whether American Indians, specifically the Illinois Piankeshaw
nations, could convey land to private individuals.175 The Court decided that Native Americans
did not possess title to any land since they were roaming hunters, not settled farmers."6 Marshall
recognized that the United States appropriated lands from Native Americans by conquest.177 He
justified the conquest by reiterating the commonly accepted argument that, "the tribes of Indians
inhabiting this country were fierce savages., whose subsistence was drawn chiefly from the
forest."178 Rather than leaving the land a wilderness and allowing indigenous people to retain
their liberty, the Europeans enforced their "pompous claims by the sword."'79 In his decision,
Marshall recognized that the United States expansionist policy was "opposed to natural right[s],"
80 but he nevertheless held that Indians only had a possessory, but not fee simple, interest in the
land they occupied. The accepted "legitimizing narratives"8' and linguistic paradigms used by
Whites to justify their cruelties against the aboriginal peoples of North America caused even
great thinkers like Marshall to argue that Native Americans had less claims to basic human rights
than their White counterparts. As with the widely distributed Nazi stereotypes of Jews, American
stereotypes of Native Americans served as the groundwork for claims of superiority. Repeated
messages about the inferiority of Native Americans and Jews were later instrumental for carrying
out racist policies. The hate propaganda regarding Jews in Germany and Native Americans in the
United States provided a conceptual framework for systematic, widespread oppression. Although
the persecutions experienced by these two groups were significantly different, in both cases
racist utterances significantly contributed to discrimination and destruction.
*Ellipsis from source

Champion Briefs

379

NEG: Hate Speech DA

January/February 2017

Hate speech desensitizes society to atrocities, justifying hate


crimes and further acts of discrimination.
Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
The proliferation of hate material over the Internet is only partially responsible for recent hate
crimes. Hate messages typically precede violent hate crimes. The World Church of the Creator"
is an organization that spreads hate propaganda through the Internet, pamphlets, and television
interviews.218 It calls on its members to participate in a racial holy war."' One the World Church
of the Creator's disciples, Benjamin Smith, recently acted on its doctrine, murdering a Black man
and an Asian man, as well as wounding nine Jews."2 ' Smith made his dangerous intent known in
an interview given just weeks before the shooting."' "To want to live in a world where blacks
have power over whites, where Jews are in control, I think that's a sickness and I'd like to
eradicate that sickness. In some ways it's inevitable-racial holy war."22 Under current First
Amendment jurisprudence,2" the government could not have charged Smith with a crime for
those utterances because they did not pose an imminent threat of harm. Had Smith's words been
actionable, based on his manifest intent to harm Blacks and Jews at some later time, his lethal
actions may have been deterred. Just as Smith announced his deadly intent before committing the
hate crimes, Dylan Klebold and Eric Harris also made their nefarious intents known before the
bloody attack against their fellow students in Littleton, Colorado.2 4 Kiebold and Harris planned
their shooting spree to coincide with Adolf Hitler's birthday, and they rehearsed it on a video
they showed to their fellow students several months before the murders.2 5 The depictions on the
video did not constitute an imminent threat of lawless action,226 because they were recorded
several months before the murders. Nevertheless, the danger was real. The video provided a
warning sign of future lawless actions, but under current First Amendment jurisprudence its
transmission was not punishable because the danger depicted was not "imminent."22 7 The
bombing of the Federal Building in Oklahoma City, on April 19, 1995, provides another recent
example of a tragedy that might have been avoided by enforcement of a statute prohibiting hate
speech. William Pierce's depiction of the bombing in his racist novel, The Turner Diaries,228
influenced the bomber, Timothy McVeigh. 9 If Pierce intended his book to be a blue print to that
deadly action, he might have been prohibited by statute from distributing the menacing book, and
the deaths of 168 people might then have been avoided. Hate speech also played a role in the
murder of James Byrd, Jr."0 John William King and two friends chained Byrd to a truck,
dragged him for several hundred feet, and left him for dead. 1 King, who was sentenced to death
by lethal injection, and one of his co-defendants adopted white supremacist ideology while
serving sentences for different crimes in a local jail.Y In prison, the two men joined a gang
called the Confederate Knights of America, a chapter of the KfK 233 Hate developed gradually
in these men, until the racism they heard ignited into a racially inspired, brutal murder. The
dissemination of fallacies about the history and characteristics of identifiable outgroups has

Champion Briefs

380

NEG: Hate Speech DA

January/February 2017



Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
contributed to the rise of hate crimes in the United States. While in the past, hate speech led to
mob violence and the lynching of Blacks, more recently, hate speech inflamed racists into a spate
of Black church burnings.' Before the conflagration of Macedonia Baptist Church, the KK posted
a paper on the doors of the church warning that the "KKK-is watching you." 5 A court
subsequently ordered the KK to pay $37.8 million to the Church, after a jury determined that the
KKK stirred up hatred "that led to the burning" of the "predominantly black church.""6 The
spread of hate propaganda desensitizes people to the tragic consequences of bigotry. Although
the Holocaust occurred just half a century ago, already there is a pseudointellectual movement
denying that Jews were systematically murdered by Nazis." Nationally known figures, such as
presidential candidate Patrick Buchanan and Nation of Islam leader Louis Farrakhan, have
expressed their disbelief that Nazis tried to commit genocide against the Jews. 8 The
dissemination of this view by influential figures has infected the thoughts of ordinary Americans.
According to a 1993 poll, twenty-two percent of the United States adult population thought that
"it seemed possible the Holocaust never happened," and another twelve percent did not know if
the Holocaust was possible. 9

Champion Briefs

381

NEG: Hate Speech DA

January/February 2017

Hate speech is inconsistent with democracy.


Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
While restrictions on hate speech limit bigots from distributing their vitriolic messages,
unrestricted hate speech has the potential of abrogating a much wider set of liberty interests."9
The argument that hate speech should be tolerated regardless of its potential consequences
depreciates outgroups' interest to live unmolested lives. The continued ability of persons across
racial and ethnic lines to benefit from equal rights and freedoms outweighs the interest of
individuals to make false and divisive speeches aimed at destroying egalitarianism. 3 6 Hate
speech perpetuates racial and ethnic stereotypes that are both meant to maintain discriminatory
practices and provoke hate crimes."' Hate speech constitutes a significant attack on democracy
with potentially long-term effects on the ability of outgroup members to freely exercise their
political and constitutional rights."2 The purveyors of hatred rationalize why outgroups should
not have an equal share of rights in the democratic community, and put outgroup members in
fear of their safety."6 Bigots seek to humiliate, ridicule, and devalue the common humanity of an
identifiable group of people.3" Bigotry lays the groundwork for future oppression, persecution,
enslavement, genocide, and forceful expropriations.363 "As all fascists know, it is just a matter
of time, after hate propaganda and disparagement have done their work, that violence will
follow."6 Before committing mass acts of oppression and persecution, bigots systematically
develop and disseminate a linguistic paradigm that becomes part of daily communication. With
the unrestricted development of hate speech, the hate of outgroup members becomes more
sophisticated and poised for destructive actions.367 However, the need to restrict hate speech
does not require prohibition of all of its manifestations. The First Amendment protects persons
making purely abstract arguments about the inferiority of specific groups because their speech
does not advocate present or future violence or persecution.3" Scientific or anthropological
arguments, which do not call for violent action against outgroups, should not be censured.
Bigotry which-when examined in light of historical patterns of oppression-poses a negligible
potential for stirring people to commit hate crimes, should also remain protected by the First
Amendment.369 Such ideas do not pose a danger to society, and their presence in political
discourse serves to fine-tune democratic ideals of racial and ethnic equality.37 On the other
hand, speech used to incite people to violent, bigoted actions against outgroups is not benign.371
As discriminatory laws make prejudice more socially acceptable, so too can outlawing
discriminatory practices decrease prejudice."2 Some authors argue that prohibiting the spread of
virulently hateful messages strengthens bigots in their resolve.373 Therefore, they argue against
enacting laws prohibiting hate speech.374 This viewpoint does not consider that the same
argument could be made against the enforcement of the Thirteenth, Fourteenth, and Fifteenth
Amendments to the United States Constitution.7 The existence and active enforcement of those
constitutional provisions significantly decreased the occurrence of unequal treatment in housing
and employment, eliminated laws prohibiting Blacks from voting, and generally decreased the

Champion Briefs

382

NEG: Hate Speech DA

January/February 2017



Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
incidents of racism in the United States. "That the legislative remedy might not in practice
mitigate the evil, or might itself raise new problems, would only manifest once more the paradox
of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal
with obstinate social issues."76 Legislatures cannot be absolutely certain that enacted laws will
eradicate the blight of racism, but the preservation of democracy and human rights requires the
adoption of laws prohibiting violent forms of hate speech.

Champion Briefs

383

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Restrictions on hate speech will sap


important energy from actually critiquing racist views.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
First, prohibitions on hate speech may divert energy from and dampen the sense of necessity of
the more vital activity of responding expressively to and critiquing racist views. Prohibitions, to
the extent that they take overt expression of racism out of public discourse, create a danger about
which John Stuart Mill warned. Without people having the experience of responding to and
opposing expressions of misguided views, truth is in danger of becoming sterile dogma,
ineffective for good because people will have lost the ability to justify and explain the truth when
challenged.25 This point the need for any noxious doctrine that exists within a community to
be publicly expressed and then persuasively rejected was probably the underlying lessen
offered by Justice Douglas account of the discursive defeat of communism in the United States.

Champion Briefs

384

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: We should still seek political


correctness, even if we reject legal prohibitions of hate
speech.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Here is a place to repeat the point that, even if human rights, including the right of everyone to
express her views no matter how horrifying, require rejecting legal prohibitions of hate speech,
this legal toleration does not imply neutrality or complacence toward the evil views. Neutrality
or social toleration is the opposite of what society needs. In any free discussion or in wide-open
debate where speech may be vehement, caustic, and sometimes unpleasantly sharp in its
attacks26 conversational partners (or political opponents) should be committed to each being
able to express her view. But the response of the other can be: no, your view is entirely
unacceptable, it is wrong for the following reasons, and I will do everything within my (legal)
power to prevent it from being realized. Despite conservative objections, people should seek
political correctness, like all forms of correctness. Of course, ideal responses to the people whom
a person believes is offering evil counsels is a subject too extensive to take up here, but I should
note that I am hardly recommending retributivist responses or denial of rights. Still, to the extent
they are able, people should reject, not tolerate, evil counsels and evil endeavors. Specifically,
people should condemn the racist expression and react accordingly to the people who purvey it.

Champion Briefs

385

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: More effective opposition to racism will


come from social practices, not legal prohibitions.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
As an empirical hypothesis, I suggest that more active (and thus more effective) opposition to
racist views is likely to come from social practices of not tolerating racist expression than from
laws making it illegal. People in positions of power or authority do and should lose their
influence, and often even their position of authority, for public or exposed private racist
expression. Society should be and apparently is prepared to maintain strong social norms
rejecting racist viewpoints. I fear, however, that such social practices would be weakened by, and
even replaced by laws prohibiting racist expression. Legal prosecutions focus on the wrong
issues legal requirements, legal line drawing, propriety of prosecution of this rather than other
cases. In any minimally decent society that legally permits hate speech, such expression of hate
reflexively creates, for those who object to racism, a platform to explain and justify their
objections. This expressive activity may provide the greatest safeguard against racist cultures and
polities. In contrast, repression creates a platform for racists to claim victim-hood and to appeal
to the many who value liberty to oppose the suppression of their freedom, shearing off the
energy of a significant group from the chorus that condemns the racist views.

Champion Briefs

386

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Hate speech prohibitions cause racism


to go underground--that reduces the effectiveness and
likelihood of opposition to racism.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Second is a closely related point. By causing racism to (largely) go underground, speech
prohibitions are likely to obscure the extent of the problem and the location or the human or
social carriers of the problem, thereby reducing both the perceived necessity and the likely
effectiveness of opposition to racism. My experience has been that among those people who are
likely targets of hate speech but who still favor free speech, the reason most often given for
favoring speech is the advantage of knowing the enemy. Knowledge of the existence, views,
and, importantly, the identity of those with racist attitudes increases the capacity of those
potentially subject to racist harms to protect themselves and to make meaningful rhetorical,
strategic, political and legal responses.

Champion Briefs

387

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Speech prohibitions cause racist


backlash.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Third, speech prohibitions can increase (or create) racist individuals or groups sense of
oppression and, thereby, their rage and belief that they must act. There is an empirical issue of
whether prohibitions on racist speech do more to prevent than to fan the development of racist
attitudes. I only speculate here, but I suggest that the causes are deeper and the prohibitions may
do little. If this suggestion is right, the primary immediate effect of the speech prohibition may
be simply to suppress (or to attempt to suppress) peoples expression of their racist views. The
primary dynamic consequence of suppression is to outrage and alienate those suppressed. They
reasonably experience the majority (that is, those who back the law) and the legal order as
specifically denying their basic rights, their right to express their truthfully held views in the
public sphere (or in whatever contexts the specific law applies) while everyone else has this
freedom. For this reason, they may conclude, they can no longer accord allegiance to (or view as
legitimate) this legal order. That is, the prohibition is likely to increase the virulence of their
views and their self-understanding of being treated unjustly by a legal order that they see as
coddling those whom they despise. Under these conditions, those whose speech the prohibitions
make illegal are likely to feel more increasingly justified in using any means including violent
or illegal means to pursue their values. Essentially, this is the point of Thomas Emersons
fourth, often neglected reason to protect free speech.27 Speech freedom, he argues, helps create a
balance between stability and change, which reduces the likelihood that pent-up anger, when
almost inevitably it eventually expresses itself, will be expressed with irrational violence. The
prediction is that even if speech prohibitions decrease the short term level of expression of the
forbidden views, they will increase the likelihood that those views will periodically be expressed
by violent outbreaks.

Champion Briefs

388

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Prohibiting the expression of values-even offensive ones--undermines democratic, non-violent
resolution to conflicts.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Fourth, prohibiting the expression of any values even the most offensive views such as
expression that denies democratic values or calls for violent or illegal actions in the context of
discourses where verbal responses are possible is likely to reduce the democratic cultural
selfunderstanding that conflicts are to be dealt as a political rather than violent struggle. This
selfunderstanding, as suggested earlier, helps decrease the likelihood (without eliminating the
danger) that racism will be expressed in overt violence. This is basically Ralf Dahrendorfs
vision that the idea of democracy is not to embody the naive goal to eliminate conflict but rather
to move societys inevitable real conflicts from the plane of violence to the plane of politics.28

Champion Briefs

389

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Prohibitions on hate speech divert


police energy from addressing the underlying causes of
racism.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Fifth, a political program of enacting and enforcing hate speech prohibitions runs the danger of
diverting political energy from arguably more meaningful political responses to the underlying
causes of racism. Often the purveyors of racism have themselves experienced forms of social or
material discrimination (or deprivation) and sometimes they even list their depressed material
condition as evidence justifying disparaging racist views. Changing these material conditions is
crucial. Though full consideration of the causes of racism is far beyond the scope of this talk
(and my understanding), social and material conditions, including those that generate feelings of
economic and social marginalization, are likely contexts in which racial resentment flourishes.
Changing these conditions, combined with creating contexts that can defuse racist attitudes,
could make a significant difference to the likelihood of outbreaks of racial violence as well as to
the commonality of attitudes of racial hate. Though the prospects of successful suppression of
hate speech may not be good, may even exacerbate the problem, the possibility of reducing
(though probably not eliminating) underlying causes may be real. Political energy should be
devoted to this task.

Champion Briefs

390

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Prohibiting hate speech leads to a


slippery slope.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Finally, a prohibition on even a narrowly formulated category of hate speech embodies a
principle that will be hard to circumscribe. There are two problems here. First, these laws are
likely to be abused by those in power, who will often be able to characterize the speech or
politics of their opponents as amounting to hate speech or its equivalent. Consider possible
characterizations: that labor agitators ferment class hatred and, potentially, class violence;
lesbians ferment hatred of and violence against men; black nationalists make racist attacks on
whites, Algerians insult the French, Nadine Strossen has argued that the typical use of laws
prohibiting hate speech or related offenses to honor, even if adopted to protect minority groups,
are most used to defend dominant groups and punish minority group members or suppress their
speech.31 Minorities in Ethiopia were punished under hate speech laws for their criticisms of
Ethiopias dominant ethnic group.32 That is, hate speech prohibitions have been continually used
to punish activists among oppressed groups for the criticism of dominant groups.
*Ellipsis from source

Champion Briefs

391

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Regulations on hate speech will have an


inevitable chilling effect on valuable speech.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
The second problem involves the slippery-slope both in application of these categories and use of
the justification. Any principle that allows restrictions on speech that preaches hate will be hard
to contain. Suppression of other harmful speech to deal with other nasty problems will seem
similar. Few laws aiming to restrict speech cannot receive as a justification that the law responds
to real harms. But most laws restricting speech see application only or primarily against marginal
individuals and groups the outsiders or dissenters who should be the primary beneficiaries of
speech protection.33 A real danger to free speech is that prohibitions on hate speech, justified
because of the serious harm the expression can causes, are likely to justify other restrictions on
the basis of arguments about other purported harms with the net effect of further subordinating
the disempowered.

Champion Briefs

392

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: We should err on the side of liberty


over suppression.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Justice Holmes argued that our theory of free speech is an experiment, as all life is an
experiment. It is a wager based on imperfect knowledge.39 Given lack of adequate
evidence for any certainty about the guess whether suppression or freedom provides the best
security, I think wisdom requires that choice favor liberty. Liberty is the choice if people are
fundamentally good and worthy of respect suppression is the choice if the opposite holds
factually. We are worthy of intellectual attention and concern only if the former is true. For this
reason, recognizing that the guess may turn out to wrong, I would rather have hazarded the guess
that justifies a concern with the circumstances and future of humanity. Only then would being
right in the guess matter. Moreover, I suspect, given that the answer is not writ in stone, that
guess can be a self-fulfilling prophesy. If so, it is clear which prophesy should be favored.

Champion Briefs

393

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech Link: Speech designed to create violence is


outside of First Amendment protections, and is punishable.
Napolitano, Janet. "Janet Napolitano: Its Time To Free Speech On Campus Again." Boston
Globe. October 02, 2016. Web. December 07, 2016.
<https://www.bostonglobe.com/opinion/2016/10/01/time-free-speech-campusagain/v5jDCzjuv710Mc92AhaAqL/story.html>.
The more difficult issues arise when students seek to shout down speakers or attempt to prevent
them from appearing at all. If one believes in the value of free speech and its place in the modern
university, these types of actions are antithetical. I personally disagree with many of the
sentiments expressed in the public spaces on our campuses. But the way to deal with extreme,
unfounded speech is not with less speech it is with more speech, informed by facts and
persuasive argument. Educating students from an informed more speech approach as opposed
to silencing an objectionable speaker should be one of academias key roles. After all, these
students will graduate into a country where objectionable speech is the current coin of the realm.
This does not mean that all speech is permissible. That which is designed to personally
intimidate or harass falls outside First Amendment protections, as outlined by the Supreme
Court. And remember that example of yelling Fire! in a crowded theater. These exceptions,
however, should be narrowly construed because history teaches us that even narrowly drawn
exceptions to free speech inevitably lead to broader limitations. Just read the Supreme Courts
opinions in the early 20th century, and youll know what I mean.

Champion Briefs

394

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech DA: Empirically, hate speech legislation


creates victimization from political correctness that fuels
even more hate crimes.
ONeill, Brendan. "How A Ban On Hate Speech Helped The Nazis." The Australian. March 29,
2014. Web. December 07, 2016. <http://www.theaustralian.com.au/nationalaffairs/opinion/how-a-ban-on-hate-speech-helped-the-nazis/story-e6frgd0x1226868018436>.
Were witnessing the victory of the Soviet view of speech as bad and censorship as good, with
various members of the modern Wests chattering classes unwittingly aping yesteryears
communist tyrants as they call for the banning of advocacy of hatred, and a corresponding
demise of the older enlightened belief that ideas and words should never be curtailed. Some will
say, So what if were finishing off the Soviet Unions dirty work? At least were preventing
hatred. But heres the thing: history shows that, actually, hate speech laws dont even help to
combat hate. The Weimar Republic of the 30s had laws against insulting religious
communities. They were used to prosecute hundreds of Nazi agitators, including Joseph
Goebbels. Did it stop them? No. It helped them. The Nazis turned their prosecutions for hate
speech to their advantage, presenting themselves as political victims and whipping up public
support among aggrieved sections of German society, their future social base. Far from halting
Nazism, hate speech legislation assisted it. It is surely time every hate speech law was repealed.
They are a menace to free thought and speech, and the worst tool imaginable for fighting real
hatred.

Champion Briefs

395

NEG: Hate Speech DA

January/February 2017

Hate Speech is dehumanizing and is easily distinguishable


from other forms of free expression.
Heyman, Steven J. " HATE SPEECH, PUBLIC DISCOURSE, AND THE FIRST
AMENDMENT." Chicago-Kent College of Law. July 29, 2008. Web. December 07,
2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1186262&download=yes>.
Personal security. In view of the history of violence by Nazis and the Klan, the march is likely-and may very well be intended--to undermine the personal security of the groups against whom it
is directed. However, unless the speech clearly amounts to a threat or incitement to violence, its
impact on personal security should not be regarded as sufficient to justify regulation. Rights of
personality. The march does, however, constitute a serious infringement of the personality rights
of its targets. By treating them not as persons but as inferior beings who may be oppressed or
murdered, the march may inflict severe distress or even lasting trauma on many members of the
group. Whether or not it does so, it constitutes a fundamental attack on their right to personal
dignity.29 In response, it may be said that the targets can avoid this attack simply by staying
away from the march.30 This objection might be persuasive if the speech took place out of
public view. By contrast, speech that is political and that occurs in a public place is intended and
must be deemed to be communicated to the public at large, not merely to those who happen to be
present at the time. As citizens, minority-group members have a responsibility to attend to the
political speech of others, while as the targets of such expression they have a compelling reason
to do so. Thus, even if they were to stay away from the march, they could hardly avoid its
impact. It is true, as Justice John Marshall Harlan observes in Cohen v. California, that in public
we are often subject to objectionable speech and that public discourse may not be restricted
merely because it causes offense to others.31 In my view, however, it would be a serious mistake
to hold that personality is entitled to no protection in the public realm. Individuals do not cease to
be persons when they participate in the public life of the community, and they should not be
required to wholly sacrifice their personality rights to do so.32 One can hardly imagine a form of
public discourse that injures those rights more deeply than does hate speech.
*Ellipsis from source

Champion Briefs

396

NEG: Hate Speech DA

January/February 2017

UNIQUENESS: Hate Speech and Crime associated with it, is


at an all time high with the election of Donald Trump.
Ciccotta, Tom. "Boston College Faculty Want To Ban Trump-Inspired 'Hate Speech'." Breitbart.
December 06, 2016. Web. December 07, 2016.
<http://www.breitbart.com/tech/2016/12/06/boston-college-faculty-want-to-ban-trumpinspired-hate-speech/>.
In response to Donald Trumps victory in Novembers presidential election, nearly 50 faculty
members at Boston College have signed a letter demanding that the university ban all forms of
hate speech. A letter signed by almost 50 Boston College faculty members condemns Donald
Trump for failing to address the hate crimes that his campaign emboldened. They also
condemn Trump for failing to apologize for the remarks he made about sexually assaulting
women. The letter opens: In the wake of the presidential election, we as faculty at Boston
College declare our unequivocal opposition to racism, sexism, homophobia, xenophobia,
Islamophobia, anti-Semitism, and all forms of identity-based hatred and discrimination on and
off this campus. The letter calls for the University to adopt a zero-tolerance policy against hate
speech: In this spirit, we call on the Boston College administration to immediately adopt a zerotolerance policy against hate speech. At stake at this historical juncture are not only the rights
of women and minoritized groups, but the future of our planet, the welfare of the poor, and many
other matters of urgent concern, the letter argues. We believe that actively addressing such
issues of fundamental human importance is at the heart of our work as educators, and we call on
the Boston College administration to join us in this effort.

Champion Briefs

397

NEG: Hate Speech DA

January/February 2017

Link: On campus speech restrictions are essential to mitigate


oppressive rhetorical and physical violence against
marginalized groups taking that away further entrenches
oppression.
MCCONNELL, REED E. "Why Harvards Hate Speech Policies Are Necessary." The Harvard
Crimson. April 18, 2012. Web. December 07, 2016.
<http://www.thecrimson.com/article/2012/4/18/hate-speech-libertarians/>.
There certainly should be dialogue around issues of racism, sexism, homophobia, and other
forms of oppression. If someone has prejudices, a good way to erase these prejudices can indeed
be to engage in dialogue with that person in order to understand where their attitude is coming
from and educate them about the moral and logical fallacies of their prejudice. But there is also a
need to protect people from having violence perpetrated against them. When someone calls a
black person the n word out of hatred, he or she is not expressing a new idea or outlining a
valuable thought. They are committing an act of violence. Speech has great power. It canand
often doesserve as a tool to marginalize and oppress people. Laws that restrict hate speech
simply seek to prevent violence against marginalized, oppressed groups in order to prevent them
from becoming further marginalized and oppressed.

Champion Briefs

398

NEG: Hate Speech DA

January/February 2017

Impact: Unchecked Hate Speech inevitably leads to physical


violence and attacks.
Brondou, Colleen. "Hate Crimes Increase On College Campuses." Finding Dulcinea. April 14,
2010. Web. December 08, 2016.
<http://www.findingdulcinea.com/news/education/2010/april/Hate-Crimes-Increase-onCollege-Campuses.html>.
Campus Hate Crime or Simply Free Speech? Certainly, not all hateful incidents rise to the level
of hate crimes. But even hateful words can make their mark and leave targeted students feeling
fearful. According to Cowden Moore, educators believe that a deterioration of civility in
todays society, most notably in the recent health care debate, has had an affect on how students
treat each other. College students have grown up in an era where political discourse is marked
by shouting and name-calling, so they may see lashing out as somehow acceptable, educators
said, according to Cowden Moore. Others point to unchecked free speech as the culprit. Rabbi
Aron Hier, director of campus outreach for the Simon Wiesenthal Center in Los Angeles,
suggests that administrators havent enforced codes of conduct on campuses. This grew out of a
context where people have been saying hateful things for a long time, and its gone unchecked,
Hier told Cowden Moore. If this is what free speech can do, its going to lead to violence.

Champion Briefs

399

NEG: Hate Speech DA

January/February 2017

A2 They Can Protest Back: Protests on Race are not


afforded the same protections as white protests, and often
end in physical violence and hate crimes.
Journal Of Blacks In Higher Education. "After Campus Protests, A Backlash Of Racist Incidents
Occur On College Campuses." Journal of Blacks in Higher Education: Campus Racial
Incidents. November 20, 2015. Web. December 08, 2016.
<https://www.jbhe.com/2015/11/after-campus-protests-a-backlash-of-racist-incidentsoccur-on-college-campuses/>.
It comes as no surprise that in the aftermath of campus protests on issues dealing with race, there
has been a backlash, with several race-related incidents occurring on campuses across the nation.
At the University of Missouri, where student protests forced the resignation of the system
president, vandals spray painted over the word Black on the building sign for the Black
Culture Center on campus. Also, a student reported that he heard someone yell at a Black student
on campus, Black motherfuckers, youre not welcome here. At Bowie State University, a
historically Black educational institution in Maryland, a large swastika was spray-painted on the
Martin Luther King Jr. Communications Art Center. At Howard University, campus security was
heightened after a someone identifying him or herself as a disgruntled University of Missouri
students stated online that they were going to kill Black students on the Howard campus. After
all, the person stated online, its not murder if theyre Black. Signs on the campus of Yale
University were defaced with slogans referring to Black criminality, violence, and rape. An
anonymous posting on Twitter threatened to kill every Black male and female at Kean
University in Union, New Jersey. The tweets occurred about the same time that a rally was
being held on the Kean campus in support of Black student protesters across the nation. Update:
After police investigation, it was determined that a former student, who is Black, allegedly
fabricated the threats in an effort fuel the campus protest movement at Kean. Black tape was
placed over the faces of African American professors on photographs hanging outside a lecture
hall at Harvard Law School.

Champion Briefs

400

NEG: Hate Speech DA

January/February 2017

Link: The moderation of free speech by administration is


essential to mitigate compounding anti-semetic harassment
on campuses.
Klein, Joseph. "The Alarming Rise Of Campus Anti-Semitism." Frontpage Mag. December 15,
2013. Web. December 08, 2016. <http://www.frontpagemag.com/fpm/213232/alarmingrise-campus-anti-semitism-joseph-klein>.
The 3Ds, coupled with physical intimidation, make up the toxic mix that confront Jewish
students on too many U.S. campuses today. University presidents must take personal charge of
campus-wide campaigns to push back. In addition to promptly disciplining those who engage in
harassment of Jewish students, university administrators from the top down should work hard to
foster an environment of civility, according to Kenneth L. Marcus, President and General
Counsel of the Louis D. Brandeis Center for Human Rights under Law and former Staff Director
at the United States Commission on Civil Rights. Administrators should not take the politically
safe route, he advises. Speaking out publicly against campus anti-Semitism is more effective
than taking a quieter approach that sweeps the problem under the rug. They should explain,
Marcus recommends, how anti-Semitic incidents on campus resemble other ugly incidents
which the administration has addressed with equal seriousness and explain the future and
ongoing policies and practices which will prevent recurrences. Finally, when President Obama
addressed the Muslim world in his June 2009 Cairo speech he promised: I consider it part of my
responsibility as President of the United States to fight against negative stereotypes of Islam
wherever they appear. Sadly, he does not consider it his responsibility to fight against negative
stereotypes, let alone harassment, of Jews on campus or anywhere else.

Champion Briefs

401

NEG: Hate Speech DA

January/February 2017

White supremacist groups are gearing up for verbal attacks


of minority groups on campuses across the US, causing a
spillover to violence.
Journal Of Blacks In Higher Education. "White Supremacists On College Campuses
Emboldened By Trump Victory." Journal of Blacks in Higher Education. November 18,
2016. Web. December 08, 2016. <https://www.jbhe.com/2016/11/white-supremacists-oncollege-campuses-emboldened-by-trump-victory/>.
There has been a rash of racial incidents on college campuses in the aftermath of Donald
Trumps election to the presidency. Many of these incidents have involved hate crimes directed
against Muslims. But racial hate directed against African Americans has occurred on several
campuses. At Lebanon Valley College in Annville, Pennsylvania niggers#Trump was found
written on the building housing the Womens Services and Gender Resource Center. The
building also serves as student residence hall. African Americans make up 3 percent of the
undergraduate student body at the college. Racist fliers with the headline Why White Women
Shouldnt Date Black Men were posted on the campuses of Southern Methodist University in
Dallas and the University of Oklahoma. At Baylor University in Waco, Texas, a Black woman
student who was born in Zambia said she was shoved on her way to class by a man who said,
No niggers allowed on the sidewalk. The man then stated, I am just trying to make America
great again. At Wake Forest University in Winston-Salem, North Carolina, a group of people
ran through the South Campus shouting the word Niggers. Students at Abilene Christian
University in Texas were expelled after posting of a photograph of a White student in blackface
on social media. At Texas State University in San Marcos, offensive posters were put up at
several spots on campus. The text of the poster read: Now that our man Trump is elected and
Republicans own both the Senate and the House time to organize tar & feather vigilante squads
and go arrest & torture those deviant university leaders spouting all this diversity garbage. A
Black woman student at Villanova University in Pennsylvania, reports that she was assaulted by
a group of White males who yelled Trump. Trump. Trump!

Champion Briefs

402

NEG: Hate Speech DA

January/February 2017

Hate Speech is on the rise since Trumps election, as groups


weaponized his rhetoric across the US.
Reilly, Katie. "Racist Incidents Are Up Since Donald Trumps Election. These Are Just A Few
Of Them." Time. November 13, 2016. Web. December 08, 2016.
<http://time.com/4569129/racist-anti-semitic-incidents-donald-trump/>.
In the days since the presidential election, states across the country have seen increased incidents
of racist or anti-Semitic vandalism and violence, many of which have drawn directly on the
rhetoric and proposals of President-elect Donald Trump. The Southern Poverty Law Center has
counted more than 200 complaints of hate crimes since Election Day, according to USA Today.
Since the election, weve seen a big uptick in incidents of vandalism, threats, intimidation
spurred by the rhetoric surrounding Mr. Trumps election, Richard Cohen, president of the
Southern Poverty Law Center told USA Today. The white supremacists out there are
celebrating his victory and many are feeling their oats.

Champion Briefs

403

NEG: Hate Speech DA

January/February 2017

A2 Women Hate Speech: The concept of gender justice.


Strossen, Nadine. "Nadine Strossen: Free Expression: An Endangered Species On Campus?
Transcript." Shorenstein Center. November 05, 2015. Web. December 08, 2016.
<http://shorensteincenter.org/nadine-strossen-free-expression-an-endangered-species-oncampus-transcript/>.
Of course, combating gender discrimination, violence and sexual assault is of the utmost
urgency. I hope that goes without saying, but I will underscore it: of the utmost urgency. But,
OCRs distorted concept of sexual harassment actually does more harm than good to gender
justice, not to mention to free speech. More than 20 years ago, my book, Defending
Pornography, made this point in the context of opposing laws that some feminists were then
advocating, laws that would ban sexual expression that they viewed as demeaning to women. In
fact, there was a vigorous campaign for one such law right here in Cambridge, which was
defeated, thanks in large part, to other anti-censorship feminists, including the Boston Womens
Health Collective, the publishers of the classic, Our Bodies Ourselves. Well, alas, all these years
later, decades later, my books message is still relevant in response to the still ongoing efforts to
suppress sexual expression for the purported sake of womens equality and safety, now through
the vehicle of campus sexual harassment policies. By the way, this book was my first nonacademic publication. And I hadnt realized how few free speech rights first-time authors have in
their contracts with major publishers. So, I didnt have much to say over the books title or cover,
which the publisher clearly designed to be in your face, provocative. You see that subtitle, Free
Speech, Sex, and the Fight for Womens Rights. And then, that neon, flaming, big word,
pornography right in the middle. Well, that prompted this comment from one of my academic
friends, who had written scholarly works on the general subject with the typical long, dull
academic titles, you know, with a semicolon in the middle, and dripping with sarcasm, and
maybe a little envy, she said, Gee, Nadine, couldnt they work in the word orgasm, too?
OCRs flawed sexual harassment concept reflects sexist stereotypes that are equally insulting to
women and men. For women, it embodies the archaic and infantilizing notion that we are
inherently demeaned by any expression with sexual content. And that same problem plagued the
anti-pornography laws that I mentioned. In fact, the ACLUs lawsuits against those antipornography laws argued that they violated both free speech and gender equality.

Champion Briefs

404

NEG: Hate Speech DA

January/February 2017

Hate groups are growing, and attackers are being


emboldened to attack college campuses more and more.
Brooks, Lecia. "White Supremacists Seek To Spread Hate On College Campuses." Southern
Poverty Law Center. April 04, 2016. Web. December 08, 2016.
<https://www.splcenter.org/news/2016/04/04/white-supremacists-seek-spread-hatecollege-campuses>.
Two weeks ago, someone managed to hack into campus printers and fax machines at more than a
dozen universities across the country to print a flier with an anti-Semitic, white supremacist
message. White man are you sick and tired of the Jews destroying your country through mass
immigration and degeneracy? said the one-page flier, which included two swastikas. Join us in
the struggle for global white supremacy at The Daily Stormer. Shortly thereafter, Andrew
Anglin, the creator of the notorious neo-Nazi Daily Stormer website, said that Andrew
Auernheimer, a white supremacist hacker known as weev, was behind the hack. This isnt the
first time the Daily Stormer has targeted college campuses. In fact, its entire mission seems to be
disseminating a white supremacist message to Internet-savvy young people. Last year, in the
wake of student protests at the University of Missouri over university administrators lack of
response to repeated racist incidents, legions of Anglins followers, known as Stormers, began
seeding fake stories about White Student Unions being founded on college campuses nationwide.
Unfortunately, not all of those reports were false. One such chapter at Cornell University has
already received a stipend from the Daily Stormer to promote its racist agenda. The attempt to
stir racial divisions on college campuses is just one more sign of the growing extremism in our
country. Earlier this year, the Southern Poverty Law Center reported that 892 hate groups were
operating across the country a 14% increase over the past year.

Champion Briefs

405

NEG: Hate Speech DA

January/February 2017

Hate Speech on and off campuses are connected in rhetoric


and violencefailure to censor on campus leads to a spillover
everywhere.
Brooks, Lecia. "White Supremacists Seek To Spread Hate On College Campuses." Southern
Poverty Law Center. April 04, 2016. Web. December 08, 2016.
<https://www.splcenter.org/news/2016/04/04/white-supremacists-seek-spread-hatecollege-campuses>.
Hate speech, of course, is protected by the First Amendment. But we can certainly push back
against it. The fact is, its often a precursor to violence. The SPLC has seen over many years that
the vilification of minority groups can incite or embolden violent white supremacists or other
extremists to commit hate crimes or even terror attacks, like the one in Charleston last year that
left nine African Americans dead at a church famous for its role in the civil rights movement.
Just days after Auernheimer hacked into university printers, students at Hollins University in
Roanoke, Va., woke up to a swastika painted on their campus landmark, the Rock a large
centerpiece on campus where it is a senior tradition to paint vibrantly colored messages to their
classmates. Students acted quickly to cover the swastika. While such a terrifying symbol of hate
has been covered, and the Daily Stormers fliers are likely now in waste bins, a single weekend
has reminded us of some important lessons. College campuses are not islands removed from the
rest of society. Hate in the mainstream breeds hate everywhere, in rhetoric and action. These
most recent incidents remind us that bigotry is alive and well, and must be actively engaged in all
forms and at all levels of society.

Champion Briefs

406

NEG: Hate Speech DA

January/February 2017

A2 Inclusion: Attempting to reconcile hate speech, leads to


higher tuition spikes, further burdening marginalized
groups.
Jackson, Abby. "Tuition Increases May Be An Unintended Consequence Of Student Racism
Protests Across America's Campus." Business Insider. November 25, 2015. Web.
December 08, 2016. <http://www.businessinsider.com/college-students-protests-againstracism-may-increase-tuition-and-student-loan-debt-2015-11>.
High-profile incidents of racial discrimination at the University of Missouri have spurred
students across the US to protest racism on their own campuses. Those protests have proliferated
at campuses across the nation from the East Coast Ivy League to California-based Claremont
McKenna, resulting in promises from administrators to add cultural centers or funding for
diversity projects on campus. But those concessions may have the unintended consequence of
burdening students with higher tuition costs, Andrew Kelly wrote in Forbes on Tuesday. "More
often than not, students will be stuck with the bill; higher tuition prices, in turn, may further
depress access for needy students," Kelly wrote. As college administrators begin to respond to
student protesters' demands, it's clear that some schools are willing to offer up money to help
students of color feel less marginalized on campus. After weeks of tension on Yale University's
campus, President Peter Salovey sent an email to the Yale community pledging to build a more
inclusive campus, including adding teaching staff and courses that address diversity and
launching a series of conferences on issues of race.

Champion Briefs

407

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech Leg is key: Hate Speech laws are subjective


and entirely ineffective banning phrases or arguments can
be used by all political spectrums.
The Economist. "Curbs On Free Speech Are Growing Tighter. It Is Time To Speak Out." The
Economist. June 04, 2016. Web. December 08, 2016.
<http://www.economist.com/news/leaders/21699909-curbs-free-speech-are-growingtighter-it-time-speak-out-under-attack>.
Blasphemy laws are an anachronism. A religion should be open to debate. Laws against hate
speech are unworkably subjective and widely abused. Banning words or arguments which one
group finds offensive does not lead to social harmony. On the contrary, it gives everyone an
incentive to take offencea fact that opportunistic politicians with ethnic-based support are
quick to exploit. Incitement to violence should be banned. However, it should be narrowly
defined as instances when the speaker intends to goad those who agree with him to commit
violence, and when his words are likely to have an immediate effect. Shouting Lets kill the
Jews to an angry mob outside a synagogue qualifies. Drunkenly posting I wish all the Jews
were dead on an obscure Facebook page probably does not. Saying something offensive about a
group whose members then start a riot certainly does not count. They should have responded
with words, or by ignoring the fool who insulted them.

Champion Briefs

408

NEG: Hate Speech DA

January/February 2017

A2 Laws Key: Hate Speech laws are subjective and entirely


ineffective banning phrases or arguments can be used by
all political spectrums.
The Economist. "Curbs On Free Speech Are Growing Tighter. It Is Time To Speak Out." The
Economist. June 04, 2016. Web. December 08, 2016.
<http://www.economist.com/news/leaders/21699909-curbs-free-speech-are-growingtighter-it-time-speak-out-under-attack>.
Blasphemy laws are an anachronism. A religion should be open to debate. Laws against hate
speech are unworkably subjective and widely abused. Banning words or arguments which one
group finds offensive does not lead to social harmony. On the contrary, it gives everyone an
incentive to take offencea fact that opportunistic politicians with ethnic-based support are
quick to exploit. Incitement to violence should be banned. However, it should be narrowly
defined as instances when the speaker intends to goad those who agree with him to commit
violence, and when his words are likely to have an immediate effect. Shouting Lets kill the
Jews to an angry mob outside a synagogue qualifies. Drunkenly posting I wish all the Jews
were dead on an obscure Facebook page probably does not. Saying something offensive about a
group whose members then start a riot certainly does not count. They should have responded
with words, or by ignoring the fool who insulted them.

Champion Briefs

409

NEG: Hate Speech DA

January/February 2017

A2 Constitution: Restrictions are worth fighting forhate


speech violates educational rights and provokes violent
attacks.
Uelmen, Gerald. "Campus Hate Speech Codes." Santa Clara University MARKKULA CENTER
FOR APPLIED ETHICS. November 15, 1990. Web. December 08, 2016.
<https://www.scu.edu/character/resources/campus-hate-speech-codes/>.
Those who advocate hate speech codes believe that the harm codes prevent is more important
than the freedom they restrict. When hate speech is directed at a student from a protected group,
like those listed in Emory University's code, the effect is much more than hurt feelings. The
verbal attack is a symptom of an oppressive history of discrimination and subjugation that
plagues the harmed student and hinders his or her ability to compete fairly in the academic arena.
The resulting harm is clearly significant and, therefore, justifies limiting speech rights. In
addition to minimizing harm, hate speech codes result in other benefits. The university is ideally
a forum where views are debated using rational argumentation; part of a student's education is
learning how to derive and rationally defend an opinion. The hate speech that codes target, in
contrast, is not presented rationally or used to provoke debate. In fact, hate speech often intends
to provoke violence. Hate speech codes emphasize the need to support convictions with facts and
reasoning while protecting the rights of potential victims.

Champion Briefs

410

NEG: Hate Speech DA

January/February 2017

A2 Constitution: First Amendment protections do not


extend to minority groups in a way that equally protects
their education Power is inherently imbalanced.
Uelmen, Gerald. "Campus Hate Speech Codes." Santa Clara University MARKKULA CENTER
FOR APPLIED ETHICS. November 15, 1990. Web. December 08, 2016.
<https://www.scu.edu/character/resources/campus-hate-speech-codes/>.
Hate speech codes also solve the conflict between the right to freely speak and the right to an
education. A student attending a college or university clearly has such a right. But students
exercising their "free speech" right may espouse hateful or intimidating words that impede other
students abilities to learn and thereby destroy their chances to earn an education. Finally,
proponents of hate speech codes see them as morally essential to a just resolution of the conflict.
between civil rights (e.g., freedom from harmful stigma and humiliation) and civil liberties (e.g.,
freedom of speech). At the heart of the conflict is the fact that under-represented students cannot
claim fair and equal access to freedom of speech and other rights when there is an imbalance of
power between them and students in the majority. If a black student, for example, shouts an
epithet at a white student, the white student may become upset or feel enraged, but he or she has
little reason to feel terror or intimidation. Yet when a white student directs an epithet toward a
black student or a Jewish student, an overt history of subjugation intensifies the verbal attack that
humiliates and strikes institutional fear in the victim. History shows that words of hatred are
amplified when they come from those in power and abridged when spoken by the powerless.

Champion Briefs

411

NEG: Hate Speech DA

January/February 2017

A2 Does Not Lead to Violence: Over 10 percent of all hate


crimes take place on college campuses, and they are
connected to hate speech.
Assembly Higher Education Committee. "HATE, VIOLENCE, AND BIGOTRY ON PUBLIC
COLLEGE AND UNIVERSITY CAMPUSES." Assembly Higher Education Committee
Oversight Hearing. June 22, 2010. Web. December 08, 2016.
<http://ahed.assembly.ca.gov/sites/ahed.assembly.ca.gov/files/hearings/Background%20-%20Acts%20of%20Hate%20and%20Violence%20on%20Campuses.pdf>.
According to the California Department of Justice, statewide in 2008, just over 10% of reported
hate crimes took place on school and college campuses. The Federal Bureau of Investigation's
2008 Hate Crime Report found that, nationwide, approximately 12% of reported hate crimes
occurred at educational institutions. There are numerous laws governing hate motivated criminal
acts, and there is clear authority provided to California colleges and universities to establish rules
and regulations designed to prevent discrimination against students. However, not all hateful
incidents rise to the level of hate crimes. When even hateful words can make their mark and
leave targeted students feeling fearful, what is the appropriate role of state policy makers and
campus leaders to address hate speech? Data on hate crimes is fairly readily available. Less well
quantified, however, is the extent to which campuses experience hate incidents that don't rise to
the level of a crime. In 1986, the California Department of Justice (DOJ) first recognized the
importance of hate crime statistics in California in a report submitted to the Legislature, in
response to Senate Bill 2080 (Watson), which provided recommendations for preliminary steps
to establish a statewide hate crime database. These efforts lead to the enactment of California law
requiring the Attorney General to submit an annual report to the Legislature regarding crimes
motivated by the victims race, ethnicity, religion, gender, sexual orientation, national origin, or
physical or mental disability as reported by law enforcement agencies. The federal Clery Act
(1992) requires colleges and universities in the U.S. to report campus crimes and security
policies to both the campus community and the U.S. Department of Education. In addition to
policy and reporting requirements, it specifies that schools must report separately those crimes
that appear to have been motivated by prejudice.

Champion Briefs

412

NEG: Hate Speech DA

January/February 2017

A2 Most Campuses Dont Have Hate Speech Codes: Hate


Speech codes of conduct are abundantly more restrictive
than normal legislation requirements across the US.
Graham, David A. "When Campus Hate-Speech Rules Go Further Than The Law." The Atlantic.
November 10, 2015. Web. December 08, 2016.
<http://www.theatlantic.com/politics/archive/2015/11/hate-speech-on-campus/415200/>.
The gap here between what the law proscribes and what the university code of conduct does is
not unusual, and students who fall in the middle have taken the conflict to the courts. In many
cases, schools restrict what students can do beyond what the law does, or institute review
processes far different from the criminal-justice system. Some of these are not controversial: No
one objects when a university penalizes plagiarism. But many are plenty controversialmost
notably sexual assault and sexual harassment. On many campuses, the burden of proof for sexual
misconduct is lower than the necessity that a crime be proved beyond a reasonable doubtfor
example, asking only for the preponderance of evidence. In some cases, accused students are
not entitled to an attorney, or to confront their accusers.

Champion Briefs

413

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech leads to Violence: Hate Speech, specifically


on campuses, never spills over to violence towards those
effective It actually happens to the speaker.
Hinkle, A. Barton. "The Death Of Free Speech On College Campuses." Reason. March 18, 2015.
Web. December 08, 2016. <http://reason.com/archives/2015/03/18/the-death-of-freespeech-on-college-camp>.
The campaign against hate speech or merely offensive speech, or just any speech the listener
disagrees with rests on a couple of different rationales. The first is that hateful speech can lead
to hateful acts: Racial epithets might lead to lynching, for example. But there is no real empirical
evidence to support that claim. Indeed, on todays campus any violence is more likely to be
directed at the offending speaker, rather than at his intended target. (E.g, when an anti-abortion
protester showed up a few days ago at the University of Oregon, he didnt change any minds, but
students did snatch his poster and tear it up. This is not part of your First Amendment right,
they said.)

Champion Briefs

414

NEG: Hate Speech DA

January/February 2017

A2 Hate Speech Ban Solvency: Even if we could measure the


subjective concept of offense, it is impossible to protect it in a
legislated framework.
Hinkle, A. Barton. "The Death Of Free Speech On College Campuses." Reason. March 18, 2015.
Web. December 08, 2016. <http://reason.com/archives/2015/03/18/the-death-of-freespeech-on-college-camp>.
The second reason for protecting students from thoughts and ideas they find upsetting is to spare
their tender feelings. But this effort is self-defeating. Even if it were possible to measure
emotional pain, and to decide at what point such pain should (pardon the term) trigger the
censors veto, it is not possible to protect everyones feelings the way we can protect everyones
rights. A regime that protects everyones free-speech rights can allow both the gay-rights
advocate and the Christian fundamentalist to speak her mind. But a regime concerned with
protecting peoples feelings inevitably will hurt either the fundamentalists feelings (by allowing
only the gay-rights advocate to speak) or the advocates feelings (by allowing only the
fundamentalist to speak). Unless, of course, it hurts both of their feelings by letting neither of
them speak. No matter what, though, it allows the censors to dismiss some peoples claims for
consideration as less worthy. (You sometimes get the sense thats exactly what the campus
censors want.) Whats more, any regime that privileges feelings over rights inevitably will
ignore the very real emotional pain experienced by another important group: those who cherish
individual liberty and abhor censorship of any kind. There are still a few of them left even on
the modern American campus.

Champion Briefs

415

NEG: Hate Speech DA

January/February 2017

A2 No Impact: There is an educational tradeoff Hate


Speech is forcibly sponsored through university funds,
where it could otherwise be invested.
Berduc, Manuel. "U Of MN Students Protest Hate Speech On Campus." Fight Back! News.
February 21, 2016. Web. December 08, 2016.
<http://www.fightbacknews.org/2016/2/21/u-mn-students-protest-hate-speech-campus>.
Minneapolis, MN More than 70 students, staff, faculty and community members protested a
speech titled "CALM DOWN!! Restoring Common Sense to Feminism delivered by journalist
Milo Yiannopoulos at the Humphrey School of Public Affairs, Feb. 17. The protest, organized by
Students for a Democratic Society at the University of Minnesota with help from groups such as
Asian and Pacific Islanders for Equity and Diversity and Whose Diversity? opposed the presence
of Yiannopouloss misogynistic hate speech on campus paid for by university funds. The U of M
allocated funds to the hosts of the event, the Minnesota Republic. The Republic is the paper
affiliated with the student group Students for a Conservative Voice, which also were granted
roughly $80,000 in student service fees by the university for the 2015-2016 school year.

Champion Briefs

416

NEG: Hate Speech DA

January/February 2017

A2 Racism: Speech Codes entrench more subtle forms of


racism while taking away critical tools in identifying bigoted
speech.
Gale Group. "Hate Speech Codes Will Not End Racism And Hate Crimes." Opposing
Viewpoints in Context. 2007. Web. December 08, 2016.
<http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?zid=
da108d69995a5a10a4718835fd943d2f&action=2&catId=&documentId=GALE%7CEJ30
10196217&userGroupName=new11178&jsid=c0d42c9e3c09d9de7267a76c0f47bb22>.
To begin with, speech codes have always seemed the easy way out: the least costly, most selfrighteous, but ultimately least effective way to address racism. First, such codes only target, by
necessity, the most blatant forms of racismthe overtly hateful, bigoted and hostile forms of
speech embodied in slurs or perhaps neo-Nazi symbolismwhile leaving in place, also by
necessity, the legality of more nuanced, high-minded, and ultimately more dangerous forms of
racism. So racist books like The Bell Curve, which argues that blacks are genetically inferior to
whites and Asians, obviously would not be banned under hate speech codes (nor should they be),
but those racists who were too stupid to couch their biases in big words and footnotes would be
singled out for attention: in which case, we'd be punishing not racism, per se [for itself], or even
racist speech, but merely the inarticulate expression of the same.

Champion Briefs

417

NEG: Hate Speech DA

January/February 2017

A2 Racism: A focus on structural racism is mutually


exclusive from individual speech codes Allowing ourselves
to get bogged down in free speech ensures racism continues
unfettered.
Gale Group. "Hate Speech Codes Will Not End Racism And Hate Crimes." Opposing
Viewpoints in Context. 2007. Web. December 08, 2016.
<http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?zid=
da108d69995a5a10a4718835fd943d2f&action=2&catId=&documentId=GALE%7CEJ30
10196217&userGroupName=new11178&jsid=c0d42c9e3c09d9de7267a76c0f47bb22>.
In other words, by focusing on the overt and obvious forms of racism, hate speech codes distract
us from the structural and institutional changes necessary to truly address racism and white
supremacy as larger social phenomena. And while we could, in theory, both limit racist speech
and respond to institutional racism, doing the former almost by definition takes so much energy
(if for no other reason than the time it takes to defend the effort from Constitutional challenges),
that getting around to the latter never seems to follow in practice. Not to mention, by passing
hate speech codes, the dialogue about racism inevitably (as at Bellarmine) gets transformed into
a discussion about free speech and censorship, thereby fundamentally altering the focus of our
attentions, and making it all the less likely that our emphasis will be shifted back to the harder
and more thoroughgoing work of addressing structural racial inequity. Perhaps most importantly,
even to the extent we seek to focus on the overt manifestations of racism, putting our emphasis
on ways to limit speech implies that there aren't other ways to respond to overt bias that might be
more effective and more creative, and engage members of the institution in a more
thoroughgoing and important discussion about individual responsibilities to challenge bigotry.

Champion Briefs

418

NEG: Hate Speech DA

January/February 2017

A2 Racism: Free speech is able to solve back for racist


behavior individuals should be socially punished instead of
silenced before they speak for their racism.
Gale Group. "Hate Speech Codes Will Not End Racism And Hate Crimes." Opposing
Viewpoints in Context. 2007. Web. December 08, 2016.
<http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?zid=
da108d69995a5a10a4718835fd943d2f&action=2&catId=&documentId=GALE%7CEJ30
10196217&userGroupName=new11178&jsid=c0d42c9e3c09d9de7267a76c0f47bb22>.
Instead of banning hate speech, how much better might it be if everyone at Bellarmine who
insists that they don't agree with Chira, but only support his rights to free speech, isolated and
ostracized him: refusing to speak to him, refusing to sit near him, refusing to associate with him
in any way, shape or form. That too would be exercising free speech after all, since free speech
also means the freedom not to speak, in this case, to a jackass like Andrei Chira. Instead of
banning hate speech, how much better might it be for Bellarmine University to institutionalize
practices and policies intended to screen out fascist bottom-feeders like Chira in the first place?
After all, Bellarmine, like any college can establish any number of requirements for students
seeking to gain admission, or staff seeking to work at the school, or faculty desiring a teaching
gig. In addition to scholarly credentials, why not require applicantswhether for student slots or
jobsto explain how they intend to further the cause of racial diversity and equity at
Bellarmine?

Champion Briefs

419

NEG: Hate Speech DA

January/February 2017

A2 Racism: The defense of racism is a societal problem


Pushing it under the rug simply holds back a complete
criticism of white fascist defense.
Gale Group. "Hate Speech Codes Will Not End Racism And Hate Crimes." Opposing
Viewpoints in Context. 2007. Web. December 08, 2016.
<http://ic.galegroup.com/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?zid=
da108d69995a5a10a4718835fd943d2f&action=2&catId=&documentId=GALE%7CEJ30
10196217&userGroupName=new11178&jsid=c0d42c9e3c09d9de7267a76c0f47bb22>.
So, for example, notice how the free speech supporters wax eloquent about the importance of
upholding Chira's right to be a racist prick, but they evince almost no hostility towards [him] and
his message, beyond the obligatory throw-away line: "I completely reject his views, but will
fight for his right to express them." In other words, they are far more worked up about the
possibility (however slight it appears to be) that the Administration may sanction the Nazi, than
they are about the fact that there is a Nazi on their campus in the first place. Which brings up the
question: does Nazism not bother them that much? Or have they confused the valid concept of
free speech with the completely invalid notion that one shouldn't even condemn racists, out of
some misplaced fealty to their rights (which notion of course relinquishes one's own right to
speak back, and forcefully, to assholes like Chira)? I long for the day when whites will get as
angry at one of our number supporting bigotry and genocidal political movements, as we do at
those who denounce the bigots and suggest that the right of students of color to be educated in a
non-hostile environment is just as important as the right to spout putrid inanities. What's more, I
long for the day when whites stage sit-ins to demand a more diverse and equitable college
environment for students of color (which currently is threatened by rollbacks of affirmative
action, for example), just as quickly as we stage them to defend free speech for fascists, which, at
Bellarmine at least, shows no signs of being endangered, so quick has the Administration been to
defend Chira's liberties. In the final analysis, when whites take it upon ourselves to make racists
and Nazis like Chira feel unwelcome at our colleges and in our workplaces, by virtue of making
clear our own views in opposition to them, all talk of hate speech codes will become superfluous.
Where anti-racists are consistent, persistent, and uncompromising, and where anti-racist
principles are woven into the fabric of our institutions, there will be no need to worry about
people like Chira any longer.



Champion Briefs

420

NEG: Habermas NC


January/February 2017

Habermas NC

Jurgen Habermas, a prominent philosopher borrowing from the tradition established by

the Frankfurt School, revolutionized our notions of ethics, discourse, and communication.
Habermas developed a robust theory of communicative action and discourse ethics that describes
how particular communities come to reach the moral point of view. The first step in his
argument is that knowledge of ethics is contingent on social circumstances. As such, the result is
that each community of speakers comes to a set of different norms that lead to the good life.
Since these sets are incommensurable, none of them can be truly normative. This means other
theories of justice fail since they posit a universal good that abstracts from all contexts. In this
sense, moral subjects must participate in discourse to come to a mutual consensus on the good,
insofar as they cannot be a priori principles absent social context. Since there are different
conceptions of the good, participants must justify their version and present it to an audience.
These discourses are predicated on equal participation. This is because there would never be
mutual consensus if one view was actively excluded from the discussion. The agreements could
no longer be binding or universal since others did not have the chance to combat those claims.
There are two contention-level claims the negative can make: either, a) certain forms of
speech defeat the ability to reach consensus or b) certain forms of speech do not treat all
members with equal consideration. In addition, arguments that appear in the Critical Race
Theory section of this brief can work well underneath this framework, since they note the
distorted arrangements of free speech that hate speech causes.

Champion Briefs

421

NEG: Habermas NC

January/February 2017

Hate speech preempts the ability for agents to be in an equal


position discursively. Rather than mutual respect, it confers
a status of sub-humanity enhanced by the powerless position
of marginalized groups within society.
Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
Face-to-face racial insults, like fighting words, are undeserving of first amendment protection
for two reasons. The first reason is the immediacy of the injurious impact of racial insults. The
experience of being called "nigger," "spic," "Jap," or "kike" is like receiving a slap in the face.
The injury is instantaneous. There is neither an opportunity for intermediary reflection on the
idea conveyed87 nor an opportunity for responsive speech. The harm to be avoided is both clear
and present. The second reason that racial insults should not fall under protected speech relates to
the purpose underlying the first amendment. If the purpose of the first amendment is to foster the
greatest amount of speech, then racial insults disserve that purpose. Assaultive racist speech
functions as a preemptive strike. The racial invective is experienced as a blow, not a proffered
idea, and once the blow is struck, it is unlikely that dialogue will follow. Racial insults are
undeserving of first amendment protection because the perpetrator's intention is not to discover
truth or initiate dialogue but to injure the victim.88 The fighting words doctrine anticipates that
the verbal "slap in the face" of insulting words will provoke a violent response with a resulting
breach of the peace. When racial insults are hurled at minorities, the response may be silence or
flight rather than a fight, but the preemptive effect on further speech is just as complete as with
fighting words.89 Wo- men and minorities often report that they find themselves speechless in
the face of discriminatory verbal attacks. This inability to respond is not the result of
oversensitivity among these groups, as some individuals who oppose protective regulation have
argued. Rather, it is the product of several factors, all of which reveal the non-speech character
of the initial preemptive verbal assault. The first factor is that the visceral emotional response to
personal attack precludes speech. Attack produces an instinctive, defensive psychological
reaction. Fear, rage, shock, and flight all interfere with any reasoned response. Words like
"nigger," "kike," and "faggot" produce physical symptoms that temporarily disable the victim,
and the perpetrators often use these words with the producing this effect. Many victims do not
find words of response until well after the assault when the cowardly assaulter has departed. A
second factor that distinguishes racial insults from protected speech is the preemptive nature of
such insults-the words by which to respond to such verbal attacks may never be forthcoming
because speech is usually an inadequate response. When one is personally attacked with words
that denote one's subhuman status and untouchability, there is little (if anything) that can be said
to redress either the emotional or reputational injury. This is particularly true when the message
and meaning of the epithet resonates with beliefs widely held in society.90 This preservation of
widespread beliefs is what makes the face-to-face racial attack more likely to preempt speech
than are other fighting words. The racist name-caller is accompanied by a cultural chorus of

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Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
equally demeaning speech and symbols.91 The subordinated victim of fighting words also is
silenced by her relatively powerless position in society. Because of the significance of power and
position, the categorization of racial epithets as "fighting words" provides an inadequate
paradigm; instead one must speak of their "functional equivalent."92 The fighting words doctrine
presupposes an encounter between two persons of relatively equal power who have been
acculturated to respond to face-to-face insults with violence. The fight- ing words doctrine is a
paradigm based on a white male point of view.93 In most situations, minorities correctly
perceive that a violent response to fighting words will result in a risk to their own life and limb.
Since minorities are likely to lose the fight, they are forced to remain silent and submissive.94
This response is most obvious when women submit to sex- ually assaultive speech or when the
racist name-caller is in a more power- ful position-the boss on the job or the mob. Certainly, we
do not expect the black women crossing the Wisconsin campus to turn on their tor- mentors and
pummel them. Less obvious, but just as significant, is the effect of pervasive racial and sexual
violence and coercion on individual members of subordinated groups who must learn the
survival techniques of suppressing and disguising rage and anger at an early age.

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A2 Marketplace of ideas: Racism acts at the level of the


unconscious distorting the marketplace of ideas, creating a
process defect.
Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
Blacks and other people of color are equally skeptical about the absolutist argument that even
the most injurious speech must remain un- regulated because in an unregulated marketplace of
ideas the best ideas will rise to the top and gain acceptance.132 Our experience tells opposite.
We have seen too many demagogues elected by appealing to America's racism. We have seen
too many good, liberal politicians shy away from the issues that might brand them as too closely
allied with us. The American marketplace of ideas was founded with the idea of the racial
inferiority of non-whites as one of its chief commodities, and ever since the market opened,
racism has remained its most active item in trade. 133 But it is not just the prevalence and
strength of the idea of racism that makes the unregulated marketplace of ideas an untenable
paradigm for those individuals who seek full and equal personhood for all. The real problem is
that the idea of the racial inferiority of non-whites infects, skews, and disables the operation of
the market (like a computer virus, sick cattle, or diseased wheat). Racism is irrational and often
unconscious.134 Our belief in the inferiority of non-whites trumps good ideas that contend with
it in the market, often without our even knowing it.135 In addition, racism makes the words and
ideas of blacks and other despised minorities less saleable, regardless of their intrinsic value, in
the marketplace of ideas.136 It also decreases the total amount of speech that enters the market
by coercively silencing members of those groups who are its targets. 37 Racism is an epidemic
infecting the marketplace of ideas and rendering it dysfunctional. Racism is ubiquitous. We are
all racists.138 Racism is also irrational. Individuals do not embrace or reject racist beliefs as the
result of reasoned deliberation.'39 For the most part, we do not recognize the myriad ways in
which the racism pervading our history and culture influences our beliefs. In other words, most
of our racism is unconscious. 140 The disruptive and disabling effect on the market of an idea
that is ubiquitous and irrational, but seldom seen or acknowledged, should be apparent. If the
community is considering competing ideas about pro- viding food for children, shelter for the
homeless, or abortions for pregnant women, and the choices made among the proposed solutions
are influenced by the idea that some children, families, or women are less deserving of our
sympathy because they are not white, then the market is not functioning as either John Stuart
Mill or Oliver Wendell Holmes envisioned it. In John Ely's terms there is a "process defect."'4'
Professor Ely coined the term "process defect" in the context of developing a theory to identify
instances in which legislative action should be subjected to heightened judicial scrutiny under the
equal protection clause. Ely argues that the courts should interfere with the normal majoritarian
political process when the defect of prejudice bars groups subject to widespread vilification from
participation in the political process and causes governmental decisionmakers to misapprehend
the costs and benefits of their actions.'42 This same process defect that excludes vilified groups

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Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
and misdirects the government operates in the market- place of ideas. Mill's vision of truth
emerging through competition in the marketplace of ideas relies on the ability of members of the
body politic to recognize "truth" as serving their interest and to act on that recognition.143 As
such, this vision depends upon the same process that James Madison referred to when he
described his vision of a democracy in which the numerous minorities within our society would
form coalitions to create majorities with overlapping interests through pluralist wheeling and
dealing.'44 Just as the defect of prejudice blinds the white voter to interests that overlap with
those of vilified minorities, it also blinds him to the "truth" of an idea or the efficacy of solutions
associated with that vilified group.145 And just as prejudice causes the governmental
decisionmakers to misapprehend the costs and benefits of their actions, it also causes all of us to
misapprehend the value of ideas in the market. Prejudice that is unconscious or unacknowledged
causes even more distortions in the market. When racism operates at a conscious level, opposing
ideas may prevail in open competition for the rational or moral sensibilities of the market
participant. But when an individual is unaware of his prejudice, neither reason nor moral
persuasion will likely succeed. 1

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Power works through our linguistic tools and categories.


Those who inhabit subordinate positions effectively become
powerless and unable to participate in the marketplace of
ideas.
Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
One of my students, a white, gay male, related an experience that is quite instructive in
understanding the inadequacy and potential of the "fighting words" doctrine. In response to my
request that students de- scribe how they experienced the injury of racist speech, Michael told a
story of being called "faggot" by a man on a subway. His description included all of the speech
inhibiting elements I have noted previously. He found himself in a state of semi-shock, nauseous,
dizzy, unable to muster the witty, sarcastic, articulate rejoinder he was accustomed to making.
He suddenly was aware of the recent spate of gay-bashing in San Francisco, and how many of
these had escalated from verbal encounters. Even hours later when the shock resided and his
facility with words returned, he realized that any response was inadequate to counter the
hundreds of years of societal defamation that one word-"faggot"- carried with it. Like the word
"nigger" and unlike the word "liar," it is not sufficient to deny the truth of the word's application,
to say, "I am not a faggot." One must deny the truth of the word's meaning, a meaning shouted
from the rooftops by the rest of the world a million times a day.97 Although there are many of us
who constantly and in myriad ways seek to counter the lie spoken in the meaning of hateful
words like "nigger" and "faggot," it is a nearly impossible burden to bear when one encounters
hateful speech face-to-face. But there was another part of my discussion with Michael that is
equally instructive. I asked if he could remember a situation when he had been verbally attacked
with reference to his membership in a super- ordinate group. Had he ever been called a "honkie,"
a "chauvinist pig," or "mick"? (Michael is from a working class Irish family in Boston.) He said
that he had been called some version of all three and that although he found the last one more
offensive than the first two, he had not experienced-even in that subordinated role-the same
disorienting powerlessness he had experienced when attacked for his membership in the gay
community. The question of power, of the context of the power relationships within which
speech takes place, must be considered as we decide how best to foster the freest and fullest
dialogue within our com- munities. It is apparent that regulation of face-to-face verbal assault in
the manner contemplated by the Stanford provision98 will make room for more speech than it
chills. The provision is clearly within the spirit, if not the letter, of existing first amendment
doctrine.

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Racist speech devalues the speech of other participants in


the discourse that exist on the margins of society.
Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
Racist speech also distorts the marketplace of ideas by muting or devaluing the speech of blacks
and other non-whites. An idea that would be embraced by large numbers of individuals if it were
offered by a white individual will be rejected or given less credence because its author be- longs
to a group demeaned and stigmatized by An obvious example of this type of devaluation would
be the black political candidate whose ideas go unheard or are rejected by white voters, although
voters would embrace the same ideas if they were championed by a white candidate.147 Racial
minorities have the same experiences on a daily basis when they endure the microaggression of
having their words doubted, or misinterpreted, or assumed to be without evidentiary support,'48
or when their insights are ignored and then appropriated by whites who are assumed to have been
the original authority.149

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A2 Marketplace of ideas: Racist speech decreases the


amount of speech that reaches the market.
Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
Finally, racist speech decreases the total amount of speech that reaches the market. I noted
earlier in this Article the ways in which racist speech is inextricably linked with racist conduct.
The primary purpose and effect of the speech/conduct that constitutes white supremacy is the
exclusion of non-whites from full participation in the body politic. Sometimes the
speech/conduct of racism is direct and obvious. When the Klan burns a cross on the lawn of a
black person who joined the NAACP or exercised his right to move to a formerly all-white
neighborhood, the effect of this speech does not result from the persuasive power of an idea
operating freely in the market. It is a threat, a threat made in the context of a history of lynchings,
beatings, and economic reprisals that made good on earlier threats, a threat that silences a
potential speaker.150 The black student who is subjected to racial epithets is likewise threatened
and silenced. Certainly she, like the victim of a cross-burning, may be uncommonly brave or
foolha