Professional Documents
Culture Documents
Free Speech
Defining the scope of Constitutionally Protected Free Speech DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
Alluringly uncomplicated is the proposition that the words of the Constitution, such as "speech," can and should be
interpreted as ordinary language, having substantially the same meaning in constitutional text as they do in
everyday discourse. Those adopting such a view criticize the Supreme Court's obscenity decisions for ignoring the
obvious. If pornography is a form of speech, according to the dictionary or according to ordinary usage, pornography
must be a form of speech for first amendment purposes. If, however, ordinary usage supplies us with the definition
of the word "speech," then what excludes from first amendment coverage the many other activities that plainly are
speech as the word is ordinarily used? Perjury is speech, conspiracy is speech, oral or written fraud is speech,
verbally describing military secrets to an enemy is speech, and calling a bookie to place a bet is speech. Yet none of
these activities has been held to be within the scope of the first amendment. It is especially important here to
distinguish between activities that are within the scope of the first amendment and those that are not, and at the
same time to distinguish between coverage and protection.
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
Distinguishing between speech and non-speech is a constitutional function. The legislative or regulatory function is
to identify a particular harm. Difficulty arises because many of the legislatively perceived harms flowing from
obscenity are present in speech as well as non-speech. Obscenity may offend, degrade the environment, or cause
antisocial conduct,216 The same damage may in most instances be caused by sexually explicit speech as well as
by pornographic non-speech. In drawing the constitutional line, the Supreme Court has placed it somewhere in the
middle of the area of legitimate legislative concern. Often a legislature cannot deal with an entire class of harm
without infringing upon speech as well as non-speech. It cannot regulate speech without making a far greater
showing of need than is currently available on the evidence.217 The effect of the first amendment, therefore, is to
limit the legislative bodies to regulating only part of a problem.
Speech is not protected for what it is, rather for what it does DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
In Roth v. United States,12o and Chaplinsky v. New Hampshire,l2! the Court appears to suggest that utterances or
other conduct that comprise "no essential part of any exposition of ideas"122 are not reached by the ftrst
amendment. Unfortunately, precedent fails to supply examples of such "idealess" utterances. If an utterance exists
that does not contain an idea, it was not the utterance in Chaplinskyl23 or Beauharnais v. Illinois, 124 and it is not
clear whether it was the utterance in Roth since in that case the Court was not passing on the obscenity of speciftc
materials.12s But the questionable origin of the idea-less concept does not alone render it invalid. There may be
examples of idea-less utterances even if the Court failed to identify them. The core principle, detailed in the previous
section, is that speech is protected not for what it is, but for what it does.'26 Speech is protected only because it
contains certain properties. If there are utterances that do not serve the purposes for which speech is protected, or
that do not contain the properties that justify the principle of free speech, there is no reason to place such utterances
within the ambit of the first amendment.
reasonable person would understand the language not to be a credible threat. Additionally,
threats of mere social ostracism or boycotts are protected by the constitution.
Amendment. (In the Chaplinsky case, the fighting words were not hate speech; rather they were
"God damned racketeer" and "damned fascist.")
"Of course the First Amendment does not expressly mention hate speech among its six
protections in its text," Cuomo said. "I meant to refer to the relevant case law about the (First
Amendment) to see what is protected. There you quickly find that hate speech is almost always
protected. The keyword is almost. Hate speech can be prohibited; that is why I keep citing the
Chaplinsky case and the fighting words doctrine." (Read his full response on Facebook.)
Even with this clarification, Weinstein said Cuomos argument isnt without holes. If a statute
bans hate speech, it has to be because it counts as a threat or fighting words -- not simply
because it is hate speech. This may seem like a slight nuance, but its important.
In 2002, the Supreme Court ruled that its constitutional for a state to have a statute that bans
cross-burning -- but only if prosecutors can prove criminal intent to threaten. They cannot, for
example, ban a burning cross used only to demonstrate political ideology. In another crossburning case, the Supreme Court ruled in 1991 that its unconstitutional to up the penalty or
charge people with a crime solely because their actions constitute hate speech.
"The fact that something is hate speech or not is irrelevant for First Amendment analysis,"
Weinstein said.
Herz, of Cardozo, added that there hasnt been a fighting words case in the Supreme Court since
Chaplinsky in 1941, and he believes it likely would have a different outcome today.
Of course, reasonable legal minds can disagree on these nuances. Alexander Tsesis, a First
Amendment law professor at Loyola University Chicago, said he believes it can be constitutional
to prohibit hate speech, and the 2002 cross-burning ruling is a good example of that.
Tsesis said the jurys still out on whether or not theres potential for the Supreme Court to ban
hate speech more broadly, noting that theres some potential for laws that prohibit speech that
defames an entire group, such as causing a group injury by saying a false stereotype. Although
Tsesis believes that would be constitutional, he acknowledged that most scholars disagree.
"In the United States, the only two types of hate speech laws likely to survive are those that are
likely to elicit an imminent fight and those that are truly threatening," he said.
Our ruling
Cuomo said, "Hate speech is excluded from protection" under the First Amendment.
The Supreme Court has ruled that certain categories of speech are excluded from constitutional
protection, such as a threat or "fighting words." Sometimes, speech can be both a threat and
hate speech, in which case it would not necessarily have First Amendment protection.
But hate speech on its own -- such as on a picket sign or a blog -- is not excluded from protection.
It may only be incidentally excluded.
Cuomo tried to clarify his point after the fact, giving an explanation similar to the examples we
hashed out here.
But on his specific claim, the jurisprudence works against him. We rate his statement False.
The same is true of the other narrow exceptions, such as for true threats of illegal conduct or
incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the
next few hours or maybe days, as opposed to some illegal conduct some time in the future).
Indeed, threatening to kill someone because hes black (or white), or intentionally inciting
someone to a likely and immediate attack on someone because hes Muslim (or Christian or
Jewish), can be made a crime. But this isnt because its hate speech; its because its illegal to
make true threats and incite imminent crimes against anyone and for any reason, for instance
because they are police officers or capitalists or just someone who is sleeping with the speakers
ex-girlfriend.
Fighting Words
Fighting words, what are they? DJS
Hentoff,Nat.[HistorianandFirstAmendmentscholar]"Speechcodesonthecampusand
problemsoffreespeech."Dissent38.4(1991):5058.
The term fighting words comes from a 1942 Supreme Court decision, Chaplinsky v. New Hampshire, which ruled
that fighting words are not protected by the First Amendment. That decision, however, has been in disuse at the
High Court for many years. But it is thriving on college campuses. In the California code, a word becomes fighting
if it is directly addressed to any ordinary person (presumably, extraordinary people are above all this). These are
the kinds of words that are inherently likely to provoke a violent reaction, whether or not they actually do.
(Emphasis added). Moreover, he or she who fires a fighting word at any ordinary person can be reprimanded or
dismissed from the university because the perpetrator should reasonably know that what he or she has said will
interfere with the victims ability to pursue effectively his or her education or otherwise participate fully in university
programs and activities.
Restrict
Content-based speech regulation is unconstitutional but contentneutral regulation is not necessarily. LMW.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
Speech regulations fall into two categories: content-based or content-neutral. Content-based regulations of
speech are those that limit speech based on its subject matter or viewpoint.26 Examples include regulations
that prohibit hate speech,27 restrict the broadcasting of sexually explicit television programing28 or ban access
to violent video games.29 Regulations that restrict speech based on its content raise the specter that the
government may effectively drive certain ideas or viewpoints from the marketplace.30 Thus, content-based
regulations have a high propensity to run counter to First Amendment policy, for above all else, the First
Amendment means that government has no power to restrict expression because of its message, its ideas, its
subject matter or its content.31 Preventing governmental restrictions is of utmost importance because [t]o
allow a government the choice of permissible subjects for public debate would be to allow the government
control over the search for political truth.32 Content-neutral regulations limit speech irrespective of its content,
generally mandating the time, manner, or place in which speech can take place.33 Examples include
regulations that ban billboards at business locations,34 only allow canvassing between the hours of 9 AM and
5 PM35 or forbid leafleting on public streets and sidewalks.36 These types of regulations only limit the
availability and use of particular mediums for speech, meaning that there should be alternate mediums which
remain open for the speaker to transmit her message to the public.37 As such, these types of regulations are
more apt to accord with the First Amendment prohibition against restricting specific messages from entering
the marketplace of ideas.38
Obscene Speech
Affirmative Action is put down by biased studentswhich takes
away from minorities educational opportunities DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
To begin with, different voice carry different weight; some voices are heard better than others; some voices are
foreclosed before even speaking. For example, it is one thing for my white male colleague to say As a heterosexual
white man I believe that persons of any sexual orientation should be equally protected under the law. It is entirely
other matter for someone to say, As a lesbian I believe that persons of any sexual orientation should be equally
protected under the law. Obviously, the lesbian is biased while the white male heterosexual is not, right? If the white
man says I feel victimized by affirmative action, the media and many of those in political power listen and validate
his experience, whereas if an African-American female says I feel victimized by capitalist patriarchy not only will
she not be quoted in the news and not validated, she will be blamed for her failure to succeed.
Along with some of the unique phrases included in the actual resolution, the basic
knowledge of a few others is going to be very instrumental to success on the topic. The first key
term is going to be fighting words, which comes out of a Supreme Court decision from 1942.
While first being ruled unconstitutional, the courts have changed their minds throughout history
and fighting words, words that cause uproar or negative action, can be included under the First
Amendment. These fighting words are usually racial slurs, sexual advances or speech insisting
violence. This is important to understand because a lot of protected modern hate speech stems
from this term. The second and probably most confusing is non-speech, which is a very unique
idea. The whole premise is that words carry meaning to some, and the meaning is more
important than the actual word. To some groups of people, a word like cracker is a racial slur,
but to others it is just a tasty snack. The duality of the meanings is worth noting. This is where
non-speech happens, when a message has an alternate, offensive meaning to a group of people.
This non-speech is protected by the First Amendment, which is a key provision of this resolution.
This being included under the Constitution provides a plethora of unique case arguments that are
going to be unique and specifically looking at the issue of hate speech.
Overall the topic seems to provide a good mix of arguments for all kinds of debaters to
argue. Understanding the basic elements of the arguments around free speech is going to be
helpful. I would highly recommend reading case decisions such as Tinker v. Des Moines,
Hazelwood. v Kuhlmeier, Bethel v. Fraser, and Morse v. Fredrick. All four of these cases provide
background that will help you conceptualize the topic and argue it better. Use your free speech
and argue your heart out on this topic, because this time your voice really matters.
Despite the amazing balance of this topic, it can never be perfect, and in my opinion, the
affirmative has the slightest advantage if one is to be had. The reasoning: you are not curtailing
one of people's most sacred rights that they have. However, this little advantage is not going to
win you the round, but a good understanding of the affirmative case position will.
When taking a first look at this topic, we notice the amount of breadth that the affirmative
side has to argue, but upon a deeper look it diminishes. As I talked about above, the First
Amendment provision is significant because it will help ward out a lot of harassment speech,
which will be a key negative concern. The best affirmatives are going to realize that universities
and colleges are essentially small microcosms of the real world and still subject to the
government's regulations. With this key idea in mind it would make no logical sense to diminish a
persons speech on a small arena, college, yet allow the same person total free speech outside of
it. This logically fails the basic ideals of fair treatment under the law, which is a key pillar for the
affirmative to stand on. Noting these key pillars will become more important in your rounds,
because this is how you want to frame the round for the best affirmative debate. If the negative
concedes that there is no substantial difference between the university and public, the
affirmative is in the perfect place to win the debate. Having a key understanding of how this logic
works is going to be very helpful for the affirmative.
With the basic underpinnings of the resolution in hand we can move now onto the
affirmative value structures that would provide for the best debatability of the current resolution.
The first value I want to discuss is justice, but instead of the same old flavor of it we will be using
John Rawls' version of it. Rawls believes that justice is fairness, and that all people need to be
treated fairly for justice to be had in a given society. The reasons I want to discuss Rawlsian
justice again goes back to the positioning for the affirmative. We need to make sure that all
people are given the same rights to speech no matter who they are or where they may be at a
given time. It would not be fair for the government to suppress your right to speak in a school,
yet allow you to speak freely out of it. One of the best examples of this logic is in Tinker v. Des
Moines, where 3 children all wore armbands with peace signs to protest the Vietnam War. The
Supreme Court affirmed that these students had the right to do this, and when the school
stepped into make them remove the bands, it was a violation of their rights. This affirms the idea
that there is no discernible distinction between a school and the open public with respect to free
speech. Overall, justice is so vital to the affirmative because it wants to make sure that all people
have the equal right to express whatever they would like to. A direct limit to your right to free
speech by the government can only cause more problems. We can see through historical
examples, mainly during the civil rights era when government suppression of speech is
degrading. Though it will not happen to the same extent on college campuses, many similar
effects can be felt on campuses that have tried to limit students access to free speech. To best
protect citizens justice needs to be preserved, making it a key affirmative value.
Besides the value of justice, I think liberty is going to be a good and well used value for
this topic. Liberty is essentially a persons basic free will to act as he or she would like to do so,
without having to always fear interaction by the government. Another great benefit of the value
of liberty is that it is one of the three basic natural rights that are ingrained into our modern
society. These most fundamental rights also have very direct ties into the Constitution which
make supporting this value better if you have a very heavy constitutional rights theme in mind.
One reason you might want to prefer the value of liberty to that of justice is because it is a more
individual approach of giving people there dues. This can turn into a very strong case because
this topic is so individualistically focused, so having a more personal value might be of some use.
In addition, the value of liberty is broader and more applicable in a good sense to all of the
different forms of speech. As we noted, speech is not just words, it can be so much more:
symbols, actions, and beliefs. All of these alternate ways of looking at speech all come from
landmark Supreme Court rulings, and thus, are topical to todays debate. Liberty is great on this
topic because it covers all of these extra areas as seen in the court decisions. The final reason I
like the value is because it is easily measurable in a society, because it is so individual focused.
As long as all people are free from the government's burden, then they are getting their due
rights, but if the government tries to restrict the usage of their individual rights, it is not. Liberty
serves as an alternate to those that would like a more individual focused, rights based, or
alternate value. Be prepared to both argue for liberty and defend it, because I anticipate the
usage a lot in rounds.
Now that there is a clear baseline and trajectory for the general cases that we have in
mind it is time to move on to the criterion level. The first is going to be the respecting of due
process, which would best go with the value of justice. The basic principles behind this value
criterion are that the state or government must respect all rights that are given to you, and the
elimination of those rights is going to be unjust. For this to work best you first need to observe
that the university/college is a direct extension of the federal government. This is important
because we to make argument that the government is violating your Fourth Amendment rights,
due process. The reason due process is so important is because it is a check on the federal
government and the large amount of power that the government has. Finally, this value criterion
provides for the most clash in the debate round because it is completely antithetical to what the
negative is going to try and run. It also establishes that any limitation of free speech is going to
be a direct violation of due process, so this criterion cannot be flipped to the other side of the
round. Overall, due process serves as a good value criterion to make sure that the federal
government is going to be fair and give all people their dues.
The second and more unique criterion I want to discuss is the market place ideas, which is
loosely based on the ideas of a free market economy. The basic provision for this criterion is that
people should be able to say and discuss whatever they like, and through this discourse,
negativity will be lessened. The best way to think about this value criterion is with a bushel of
apples, with most being fresh and delicious and a few being rotten. If the apples were to go out
for sale, eventually all the good ones would be sold and the few bad ones would not, eventually
disappearing. This is essentially what happens in the market place of ideas; the bad ideas slowly
get eliminated. The way in which this happens is even more topical, which in turn is great for
debate. Education is the way. Negative ideals and beliefs are eliminated when people become
more educated and through academic discourse. When the government comes in and censors
what can and cant be said in the schools, then this market place of ideas slowly closes and more
negative and harmful beliefs creep into or remain in the society. This criterion provides a way of
establishing fairness in how people are treated, and it also serves as a great way to counter one
of the most basic arguments that is presented by the negative speaker. Overall, I think that the
market place of ideas is going to be one of the best used criteria available on this topic.
Finally, I want to address one main point that the affirmative can use that will be very
beneficial to them, promoting social discourse. The reason that schools were created was to
challenge ideas and create new thought. Think back to Platos republic, a school where the arts
and philosophy really begin to flourish because such a high value was placed on this discourse.
When universities start to censor the language of both students and faculty this culture that
wants to create new discourse is going to be eliminated. All types of language need to be
allowed to create this system where teachers can teach freely without the fear of having some
form of punishment in their class. Furthermore, the terms of hate speech are so subjective which
can lead to an era of McCarthyism which only furthers the devolution of ideas. Allowing real
debate to happen is key to challenging the beliefs of people. If we try to shelter people and never
let them never be offended or take a position on some type of issue, then a society of weak
people that cant make an opinion has been created, and that is counter to what we need in
society. Overall, free discourse is key to making society stronger and challenging opinions both in
and out of the classroom.
An important consideration about this resolution is its a flipped resolution, so the negative
is not the status quo really, rather it is advocating change. With that in mind we are going to
begin to dissect the negative position. The negative has some really interesting and fresh
arguments, but it is important to first note that you have to curtail some version of the free
speech that is protected. However bad that might be, there are examples of historical precedents
and a lot of speech that is not positive is being protected. There are two important ways for the
negative to frame the round. First, the historical precedent for limitations of speech has proven
to be constitutional and beneficial for students. Morse v. Fredrick sets this precedent as a
response to a scenario in which a student held up a sign that said, Bong hits for Jesus and the
school removed the sign. The Supreme Court ruled that this kind of material could be removed
on school grounds, but it would be allowed out in the general public. This difference in where
speech is allowed is in complete support of the negative side. Schools are a unique ground
created so that people can be educated in an environment that leads to student development.
The second way the negative needs to frame the round is one of protection of minority students.
Hate speech, sexual advances, and inappropriate comments towards others are all harmful to
the students and take away from education, but are protected. A removal of these kinds of
speech would only be beneficial to the protection of individual students rights and overall
education. Framing the round for the benefit of students is so important because the
governments goal is to protect them. If the government is allowing for the harassment of
students, then it has failed its job. Overall, the negative has a good stance on protection of
individuals and historical precedent to work from.
The most common, yet one of the best negative values for this upcoming topic is going to
be justice. Justice is going to be a great value for the negative, first, because the variety of
criteria that will work with it will be really helpful in framing the debate in whatever way you
would like to do so. More importantly, it is all about giving each person his or her due, and the
best way to illustrate this point is through the civil rights movement. This era is the root for the
curtailment of freedom of speech in the American culture, and historically affected minorities.
Hate speech in this time was a common affair and broadly socially acceptable. However, as times
have evolved schools have tried to limit the speech that is coming out of their kids' mouths.
Stanford and University of Wisconsin were two of the first schools to do this. The main
justification was the protection of the students and their access to educational value. Prior to
these changes, these university students were not getting the same dues that every other
person was getting in the university; they were being harmed. Overall, justice is a solid value if
you want to focus on what each college student is due as part of attending the university.
The second and more unique value that I believe would be a good option is that of
education. Students come to universities to better their education and ultimately become a
better person. However, hate speech and other forms of free speech actively harm the students
and lead to a decrease in the educational quality at the universities. This is why some of the
United States' top educational institutions are some of the first to significantly curtail the free
speech of their students. They realize there is a causal link between the two, and harmful speech
leads to a worse education. One of the main reasons that this happens is because students of
minority groups and females stop attending classes that have high tendency to use harassing
speech. When the student stops going to going to class just because of the language around
them they can no longer continue their educational growth. Interestingly, one researcher has
actually been able to find that these uses of intolerant language actually stunt growth in learning
in the brain of students. Universities' goal is to create an environment that fosters the learning
process of people in it, not one to take it away. Overall, education is a legitimate value because it
focuses on the basic principles of students and institutions and their goals.
As we move onto the value criterion options for debate I want you to keep justice in the
back of your mind as we go through the criterion of The Veil of Ignorance. The veil is a
philosophical concept discussed by John Rawls. The basic underpinnings are as follows.
Essentially everyone in society is behind a curtain, seated in the original position, and doesnt
know who they are in the real world beyond the veil. Because of this lack of knowledge, a person
will come to a decision that will benefit all people not just one specific class or group of people.
This is applicable to this topic because people hate to be insulted in any form and will choose not
to expose themselves to that speech. If no one knows what race or gender they may be in the
world they will want to choose a society that limits the speech of the citizenry for fear of being
one of the affected minority groups. This approach creates true justice in a society by eliminating
the self-interest bias that each person has inside of them. When this bias is eliminated what is
left is the option that is most beneficial to society, not just the self. This then leads to justice
because each person in that society is equally protected under the law, and no one is going to be
harmed. Each persons dignity, liberty, and rights are all going to be upheld. Overall, the veil
serves as a great, unbiased way to ascertain what people in a society would do if there was no
implicit bias. They would curtail free speech.
The second criterion that I want to talk more about specifically focuses on the harms that
are presented through open discourse. The criterion that would be most instrumental is
minimizing disproportionate harm. The reason that you might want to use this criterion is that
it is much more quantifiable in terms and much more direct at addressing the problem. First, we
need to observe that the majority of hate speech is aimed at minorities, especially people of
color, and women. These two demographics suffer the bulk of harmful speech on our campuses.
To create a fair society on the campus we need to either increase the hate speech towards white
males, or, more appropriately, simply eliminate the targeting of other groups. This is very similar
to other ideas of equality, but is more specific in its intentions. Finally, creating a society in which
harms are eliminated for the lower classes will begin to empower these groups out in the rest of
society. Colleges have proven to be the basis of nationwide change, and creating a culture of
minimizing disproportionate harms will further the objectives of equality. Overall, the goal is to
treat all people fairly and equally, and this criterion's main goal is to do exactly that.
Finally, an important point that the negative is going to have to overcome is that their side
of the resolution is censoring information from the schools and students. Many see such
censorship as something to be avoided, and it is inherently bad. It shouldnt be and its not Keep
in mind that censorship happens all the time. Your rights to speech are different depending on
where you are. The right to free speech is not absolute. The Supreme Court has affirmed this
belief in its landmark decision of Hazelwood v. Kuhlmeier, a case in which the court ruled that
schools can limit speech to protect the academic environment. While this may be a form of
censorship, it is beneficial to the well-being of society. The same logic applies in airports where
you cannot scream bomb or fire because this will harm the group as a whole. Censorship in
some forms is actually justified in some circumstances. The other provision for this curtailment of
rights and not censorship is it is not going to be a blanket for of elimination of speech. Only a few
and small circumstances are going to be eliminated or punishable. It is important to note that
people can say whatever they want. However, there is just going to be some form of punishment
for the words that they might be saying. The universitys main goal is to help the student culture,
not to take away from the fragile and unique community that is created from open discourse.
Overall, censorship could be an easy position to refute because it is not true censorship and
protection of the students and their education is the first goal by these institutions.
Aff Evidence
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.
Political Change
Student protest can have a significant political impact. LMW.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
Indeed, the effectuation of change through group protests and demonstrations undertaken by students is a
theme in United States history. Student protests at the University of California at Berkeley in 1964 resulted in
the University President being fired and contributed to the election of Ronald Reagan as the Governor of
California.124 Student protests at Colombia in 1968 led to a stop in federal sponsorship of Colombia to
conduct classified weapons research.125 Student protests in 1991 against tuition increases at the City
University of New York made national headlines.126 Also, the September 2013 protest at the University of
Alabama, where students called for desegregation of sororities, made national headlines. 127
Universities promote the idea that you should suppress the ideas
of those who disagree with us. LWZ
CliffMaloney[ExecutiveDirectoratYoungAmericansforLiberty],Jr.,10132016,
"CollegesHaveNoRighttoLimitStudents'FreeSpeech,"TIME,
http://time.com/4530197/collegefreespeechzone/
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.
Censorship
Government does not have a place to limit any speech DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The case for protecting racist speech against general governmental prohibition or punishment must stand on
pessimism about the ability of a pluralistic and democratic society to censor any form of expression without
degenerating into an attempt to suppress political opposition or cultural differences.' This argument has two
constituent parts. First, government has no acceptable criteria for distinguishing between valuable and worthless
speech. Even a well-meaning censor cannot in principle distinguish between an insult and a good faith assertion
that is controversial and offensive to members of a racial group, such as a speech arguing that affirmative action
has damaged performance in some city offices because blacks with substandard test scores have been hired.
Second, the implementation of governmental criteria will most likely become an expression of the political goals of
the group that controls the censor's office. For example, it has been argued that efforts to suppress racial insults in
universities reflect the political power of minorities in universities controlled by a liberal elite, and that liberals and
minorities should be concerned that the same forms of censorship will be used against them if conservatives gain
control of the universities.
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
These concerns also predominate in the recent flag desecration cases.23 In twice holding that statutory prohibitions
against burning or otherwise mutilating the national flag (a form of protest uniquely offensive to some Americans)
violate the first amendment, the Supreme Court has emphasized the political dangers inherent in sanctioning
regulation of particularly offensive speech. "If there is a bedrock principle underlying the First Amendment, it is that
the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable. '24 The Court reasoned that the special ideological value attached to the flag both gave protected
status to the expressive act of burning the flag and precluded the government from insisting that the flag be
reserved for appro-ed meanings. 25 To justify disabling the government from reserving the flag for certain meanings,
the Court emphasized both the government's incompetence for this task and the dangers of political manipulation.
Again, the government (including the Supreme Court) has no transcendent commitment that justifies prohibiting flag
desecration as a manner of expression. Consequently, any such prohibition must be in furtherance of mere "political
preferences."
Hentoff,Nat.[HistorianandFirstAmendmentscholar]"Speechcodesonthecampusand
problemsoffreespeech."Dissent38.4(1991):5058.
A black student rose and said that the white student had a hell of a nerve to assume that he-in the face of racist
speech-would pack up his books and go home. Hes been familiar with that kind of speech all his life, and he had
never felt the need to run away from it. Hed handled it before and he could again. The black student then looked at
his white colleague and said that it was condescending to say that blacks have to be protected from racist speech.
It is more racist and insulting, he emphasized, to say that to me than to call me a nigger. But that would appear to
be a minority view among black students. Most are convinced they do need to be protected from wounding
language. On the other hand, a good many black student organizations on campus do not feel that Jews have to be
protected from wounding language. Though its not much written about in reports of the language wars on
campuses, there is a strong strain of anti-Semitism among some-not all, by any means-black students Along with
quiet white liberal faculty members, most black professors have not opposed the speech codes. But unlike the white
liberals, many honestly do believe that minority students have to be insulated from barbed language. They do not
believe-as I have found out in a number of conversationsthat an essential part of an education is to learn to
demystify language, to strip it of its ability to demonize and stigmatize you. They do not believe that the way to deal
with bigoted language is to answer it with more and better language of your own. This seems very elementary to
me, but not to the defenders, black and white, of the speech codes.
Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
As bastions of intolerance, universities are promoting a single ideology instead of acting as welcoming, neutral
forums for debate. In censoring unpopular viewpoints, they rob the marketplace of ideas of its substance and
consequently silence the critical debating practice that our Founding Fathers routinely turned to in ironing out
the nations most complex issues. Mayor Bloomberg added: There is an idea floating around college
campusesincluding here at Harvard that scholars should be funded only if their work conforms to a
particular view of justice. Theres a word for that idea: censorship. And it is just a modern-day form of
McCarthyism.32 This modern-day McCarthyism has run rampant across college campuses. In May,
Condoleezza Rice, former Secretary of State and Provost of Stanford University, backed out of Rutgers
Universitys commencement after a chemistry professor successfully urged faculty and students to oppose her
selection as speaker.33 In response, Dr. Rice wrote: I am honored to have served my country. I have
defended Americas belief in free speech and the exchange of ideas. These values are essential to the health
of our democracy.34 Apparently the Rutgers community disagreed. In 2012, College Republicans at Fordham
University invited Ann Coulter to speak on campus. Even at Fordham, a university located here in New York at
the center of the known universe where I served on the Board for six years, the uproar caused the group
unceremoniously to rescind the invitation.35 In October, former New York City Police Commissioner Ray Kelly
was booed off stage by student protesters at Brown University before he even had the opportunity to speak.36
In response, University President Christina Paxson condemned Commissioner Kellys treatment, writing: our
University isabove all elseabout the free exchange of ideas. Nothing is more antithetical to that value than
preventing someone from speaking and other members of the community from hearing that speech and
challenging it vigorously in a robust yet civil manner.37
TheFoundationforIndividualRightsinEducation(FIRE)(ThemissionofFIREisto
defendandsustainindividualrightsatAmericascollegesanduniversities.These
rightsincludefreedomofspeech,legalequality,dueprocess,religiousliberty,and
sanctityofconsciencetheessentialqualitiesofindividuallibertyanddignity.)
SpotlightonSpeechCodes2011:TheStateofFreeSpeechonOurNations
Campuses.2011.
Of the 390 schools reviewed by FIRE, 261 received a red-light rating (67%), 107 received a yellow-light rating
(27%), and 12 received a green-light rating (3%). FIRE did not rate 10 schools (3%).11 (See Figure 1.) For the
third year in a row, the percentage of public schools with a red-light rating has declined. Three years ago, 79%
of public schools received a red-light rating. Two years ago, that number declined to 77%, and last year it
dropped again to 71%. This year, 67% of public universities surveyed received a redlight rating. (See Figure 2.)
Since public universities are legally bound to protect their students First Amendment rights, any percentage
above zero is unacceptable, so much work remains to be done.
American Values
Limiting constitutionally protected speech goes against everything
America stands for. LMW.
Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
In it, Holmes advised that we should be eternally vigilant against attempts to check the expression of opinions
that we loathe.47 In our time, we cannot let academia and political pressure relegate Justice Holmess
sentiments, which led the majority in Citizens United and McCutcheon, back to the status of dissents once
again. We cannot do that to the America Madison carved out of monarchy; to the republic Publius molded out
of tyranny. That tyrannys last Roman king, Lucius Tarquinius Superbus, was the antithesis of all that Publius
stood for. While Publius was regarded by the Romans as their friend, Tarquins tyrannical reign earned him
his agnomen Superbus, meaning arrogant.48 The fate of these two ancient figures should serve as a
warning to us against the backdrop of the battered state of American free speech: while narrow-mindedness
led to Tarquins downfall, acceptance led to Publius immortality. Madison, Hamilton and Jay needed a name
that would conjure a sense of public-spiritedness in their plea to ratify the Constitution. Today, chilling speech,
in whatever form it takes, tramples on the very spirit of Publius appeal. Infringing free speech not only makes
us arrogant, ignorant, and intolerant, but it also makes todays America the antithesis of all that our Founding
Fathers hoped their nation would be.
Religious Colleges
Religious colleges are often the worst offenders for free speech
violations. On these campuses, discrimination is common.
LMW.
Politt,Katha.(KathaPollitt(bornOctober14,1949)isanAmericanfeministpoet,essayist
andcritic.Sheistheauthoroffouressaycollectionsandtwobooksofpoetry)
WhereFreeSpeechIsIgnored:Religiouscollegesareamongtheworstoffenders
againsttheFirstAmendment.2016
Theres a whole swath of academia, though, that gets left out of the discussion, despite the fact that its
restrictions on speech and behavior, on what is taught in the classroom or argued in a lecture series, would
make Yale and Northwestern and the rest look like New Orleans during Mardi Gras. Im referring, of course, to
evangelical and Catholic colleges. Some of these have no compunction about limiting freedoms that other
colleges consider just a part of normal life. Many have strictures on dress (no more than two piercings in an
earlobe are allowed for women at Pensacola Christian College), on dating and social life, even on how faculty
members conduct themselves in their own homes. Lisa Day, who taught English at a small Christian college in
Appalachia, told me in an e-mail: In the year before I arrived, the then-president required regular, often
unannounced inspection of faculty residences, and any alcohol was confiscatedincluding vanilla extract.
Students have been expelled for being LGBT; professors have been fired or forced to resign for coming out as
transgender, for getting pregnant outside marriage, or for getting divorced. According to a report by the Human
Rights Campaign, there was a sharp uptick last year in the number of schools that requested and received
exemptions to Title IX, the federal law prohibiting sex discrimination. From 2013 to 2015, 35 schools obtained
waivers from the US Department of Education that would allow them to discriminate against students and
faculty who are LGBT, female, or pregnant.
History
Limiting harmful racial speech does little to redress the past
injunctions of slavery DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The deference usually given to the first amendment values in this balance is justified using the argument that racist
speech is unpopular speech, that, like the speech of civil rights activists, pacifists, and religious and political
dissenters, it is in need of special protection from majoritarian censorship. But for over three hundred years, racist
speech has been the liturgy of America's leading established religion, the religion of racism. Racist speech remains
a vital and regrettably popular characteristic of the American vernacular. It must be noted that there has not yet
been satisfactory retraction of the government-sponsored defamation in the slavery clauses, the Dred Scott
decision, the black codes, the segregation statutes, and countless other group libels. The injury to blacks is hardly
redressed by deciding the government must no longer injure our reputation if one then invokes the first amendment
to ensure that racist speech continues to thrive in an unregulated private market.
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Explosive changes at the nation's universities generated rapid change in legal doctrine. 133 Beginning in 1961,
courts decided a number of cases that both afforded students basic rights of free expression and fair procedures
against state universities, and sought to discern the line beyond which the university's traditional authority remained.
The Supreme Court first addressed student free speech rights in Tinker v. Des Moines School District, 134 a case
involving junior high school students but often applied, and no doubt intended to be applied, to university students.'
35
In Tinker, the Court held that school officials must permit students to wear black armbands in class to protest the
Viet Nam War, as long as the wearing of the armbands did not create an uproar that disturbed classwork. ' 36 The
opinion could have held for the students on the narrow ground that the school's principal impermissibly
discriminated against the students' viewpoint because he permitted many other symbols to be worn in class,
including the Iron Cross.' 37 Such a ruling would have established a significant precedent for students advocating
unpopular viewpoints while postponing consideration of whether schools have educationally valid interests in the
manner in which students express their views. The Court's holding, however, went much further than this in two
interesting respects.
Students Harmed
Limiting aspects of free speech at colleges is harmful to the
students DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Likewise in Bob Jones University v. United States, 7 8 the court sustained the Internal Revenue Service's decision
to discontinue tax exempt status for a college with a policy against interracial dating and marriage. The college
framed its objection in terms of the free exercise of religion, since their policy was religiously motivated, but the
Supreme Court found that the government had "a fundamental, overriding interest in eradicating racial
discrimination in education" that "substantially outweighs whatever burden denial of tax benefits" 79 placed on the
college's exercise of its religious beliefs. It is difficult to believe that the University would have fared any better under
free speech analysis or if the policy had been merely a statement of principle rather than an enforceable disciplinary
regulation. 80 Regulation of private racist speech also has been held constitutional in the context of prohibition of
race designated advertisements for employees, home sales, and rentals.
affirms DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
In Hazelwood, the Court gave secondary school administrators greater control over certain forms of student
speech than they had enjoyed under the Tinker standard. The 1988 decision distinguished between personal
expression that happens to occur on the school premises, to which the Tinker test still applied, and student
expression that occurs in school sponsored . . . expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school, such as publications or plays produced as
part of a schools curriculum. To place content limitations on the latter kind of speech, the Court held, administrators
merely have to demonstrate that their actions are reasonably related to legitimate pedagogical concerns. The
Court reasoned that the standard would leave school officials freer to take into account the emotional maturity of
the intended audience in determining whether to disseminate student speech on potentially sensitive topics and
that the new test would advance its belief that [i]t is only when the decision to censor a school-sponsored
publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the
First Amendment is so directly and sharply implicate[d] as to require judicial intervention to protect students
constitutional rights.
Caring about physical safety doesnt mean that policies that chill
debate are justified. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
A physically safe environment is an absolutely necessary condition for heated debate over ideas.
The university cannot tolerate violations of personal space, physical threats, sustained public
interruptions of speakers, or verbal epithets directed toward specific students; that lies beyond
the boundaries of academic freedom. That doesnt mean, however, that a college or university
should introduce policies that will curtail or chill debate, that adhere to the politically correct
beliefs of the moment, or that let their leaders off the hook through capitulation to demands
that stifle discourse and conversations about what a university education aims to produce.
Democracy
Free discourse in schools leads to a more democratic government
DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
These comments suggest a strength of the Court's broad view of first amendment protection for offensive speech
that frontal assaults have failed to touch: because democratic government is incompetent to proscribe certain forms
of speech, the Court will deny it the power to do so even in cases in which a substantial majority agrees that a form
of speech is worthless and harmful. Thus, even if one were happy with a democratic determination to punish racist
insults because "[r]acial supremacy is one of the ideas we have ... considered and rejected," 6 one might worry
about which other ideas the controlling majority might consider to have been so decisively rejected that utterance of
them could lead to prosecution. Our political life stands upon very few moral principles that offer guidance in making
these choices. 61 We expect most political decisions to reflect the preferences of shifting majorities in legislatures,
and we employ constitutional rules as an imperfect mechanism of preserving liberties that embody consensual
moral principles. Before a constitutional liberty is released to permit regulation of a perceived social wrong, a
convincing argument that fighting the wrong advances a moral principle rather than a political agenda is required.
Our reluctance to limit constitutional liberties reflects our doubts about the capacity of legislatures to identify and
apply moral principles. Proposing legal protection for some but not all victims of racial insults exacerbates anxiety
about whether such protection rests on a political agenda. Simply arguing that civic virtue ought to play a larger role
in the decision making of representative assemblies will not make it so without profound changes in our political
institutions and culture. The distrust of democratic capacity to censor speech must be overcome before general
restrictions on racist insults can be found constitutional
Academic Discourse
Confines on speech in universities limits academic discourse and
research DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The rules for punishing racist insults that universities have recently adopted reflect prevailing views about the
constitutional authority of universities in this area. Current statutes seek to punish a narrow range of utterances,
cautioned, no doubt, by the recent federal district court decision in Doe v. University of Michigan.62 In 1988 the
University of Michigan adopted a Policy on Discrimination and Discriminatory Harassment of Students in the
University Environment, which prohibited "behavior, verbal or physical, that stigmatizes or victimizes an individual on
the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status,
handicap or Vietnam-era veteran status," and poses some kind of "threat" or "interfer[es]" with a person's university
endeavors. 63 An interpretive guide, prepared by the University's Office of Affirmative Action, listed activities and
statements apparently violative of the policy, including, "A male student makes remarks in class like 'Women just
aren't as good in this field as men.' "64 The policy was challenged in Doe as vague and overbroad by a psychology
graduate student who was concerned that he might be sanctioned for classroom discussion of "controversial
theories positing biologically-based differences between sexes and races.65 The court held the policy to be
unconstitutionally overbroad and vague; it suggested, however, that a more narrowly drawn regulation might be
upheld.
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The university as speech monitor thus is quite different from the state. The university pursues normative goals of
speech, such as clarity, rigor, responsiveness, and balance, whereas the state must be neutral about both the ends
and the means of speech. When the university proscribes a manner of speech, it is more likely that the step is taken
to further valid goals of education or scholarship rather than to maintain favor with the majority who may dismiss the
censor.89 The role of the university as speech monitor seems tolerably well established within the domains of
curricular instruction and scholarship. The academic justification for university regulation of speech beyond the
curriculum has been insufficiently studied.
Believing that outsiders cannot possibly understand the situation that faces these groups of
offended individuals, by virtual of race, gender, ethnicity, or some other category, the students
often dismiss the views of their professors and administrators who cant get it because they
are not part of the oppressed group.
Many of the young adults at highly selective colleges and universities have been forced to follow
a straight and narrow path, never deviating from it because of a passion unrelated to school
work, and have not been allowed, therefore, to live what many would consider a normal
childhoodto play, to learn by doing, to challenge their teachers, to make mistakes. Their
families and their network of friends and social peers have placed extreme pressure on them to
achieve, or win in a zero-sum game with their own friends. While its difficult to assess the cases,
and while myriad factors likely contribute to the poor mental health among college students, in
2015 roughly 18 percent of undergraduates reported being diagnosed or treated for anxiety in
the past year, according to the American College Health Associations 2015 annual survey; the
rate was 15 percent for depression. Many are taking anti-depressants and anti-anxiety
medication upon entry into college.
But there is a different, though equally important, reason many students today are willing to
suppress free expression on campus. And the fault largely lies at the feet of many of the
countrys academic leaders. Students and their families have been increasingly treated as
customers. Presidents of colleges and universities have been too reluctant to offend their
customers, which may help explain why they so often yield to wrong-headed demands by
students. Courage at universities is, unfortunately, a rare commodityand its particularly rare
among leaders of institutions pressured by students to act in a politically correct way.
It seems that the vast majority of presidents and provosts of the finest U.S. universities have not
seized this moment of concern voiced by students as a teaching momenta moment to instruct
and discuss with students what college is about. Too many academic leaders are obsessed with
the security of their own jobs and their desire to protect the reputation of their institution, and
too few are sufficiently interested in making statements that may offend students but that show
them why they are at these collegesand why free expression is a core and enabling value of
any higher-learning institution that considers itself of the first rank. Of course, there are strong
academic leaders who do encourage open discussions of issues raised by students while also
speaking out against restrictions on campus speech, against speech codes, safe-space
psychology, and micro-aggressions. But they are too few and far between.
deliberation may not be suppressed because the ideas put forth are thought by some or even by
most members of the University community to be offensive, unwise, immoral, or wrong-headed.
Yet students may be signaling that their commitment to community values may take
precedence over this core value that many administrators have seen as essential for truly great
institutions of learning.
Education
Hazelwood decision cripples students educational experience DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
In todays atmosphere of increasing collegiate regulation of student speech, the application of the Hazelwood test to
universities could unintentionally cripple college journalism. Because most colleges student publications receive
some form of financial assistance from the universityeither directly through student fee allocations or indirectly
through the provision of free or low-cost office space or equipmentthe Hazelwood framework established for
school-sponsored student expression potentially could apply to the vast majority of college publications.111 Such an
outcome would leave student newspaper or yearbook editors in a difficult position: Do they play nice and allow
administrators to exercise prior review, which could convert their publications into little more than propaganda-laden
puff pieces, or do they stick to their ethical guns and risk funding cuts or worse? Under Hazelwood, college editors
would be forced to conduct a cost-benefit analysis when faced with a column that expresses an unpopular opinion
or a story
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Yet on the issue of hate speech, freedom of thought (or speech) is sometimes what colleges and universities
appear not to want. Instead, attempts are occasionally made to inculcate particular view points and
conceptualizations of mantras such as "diversity" in an effort to squash out the thoughts and expressions
inherent in hateful (or merely politically incorrect) speech. Speech codes are but one of many manifestations of
the "attempt to dictate primarily how students (and faculty) think."168 There is a substantial and concerted
effort to "enforce[]... a 'politically correct' orthodoxy" through "raw political power"169 despite the glaring fact
that imposing such an orthodoxy is exactly what the First Amendment for bids.17" Individuals have an interest
in freely and authentically formulating their thoughts, beliefs, and opinions without being bombarded by
mentally meddlesome messages. Free thought cannot be maintained in the face of constant, officious
interference that attempts to overwhelm the mind into submissive acceptance of the propounded view.172
Thus, while state action may not burden speech directly, it can still endanger or obstruct freedom of thought to
the degree necessary to justify restrictions on the government and its speech.173 the government and its
speech.173 In short, colleges and universities make concerted and elaborate efforts to promote (and even
coerce) particular values,174 trying to "exert substantive influence on mental content in ways that are in
different to and attempt to bypass the thinker's authentic consid eration of and conscious engagement with [an]
idea."175 But whether codified as a law compelling speech or a series of perva sively and invasively
disseminated policies hostile to a given view point, the infringement on the freedom of thought and freedom of
speech is the same whenever government activity aims to inculcate beliefs through brute force rather than
intellectual engagement.176
followed. LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Moreover, when values are imposed on a community rather than allowed to spring organically from it, those
values are undermined by a lack of authenticity.200 As current Columbia University presi dent and noted First
Amendment scholar Lee Bollinger served, the toleration of intolerance reaffirms community norms.201 Even
one of the most vociferous advocates of regulating and sup pressing hate speech admits that tolerating
intolerance demon strates the strength of a community's commitment to tolerance.202
Together the individual academic freedom of scholars and the institutional academic freedom of universities serve
as safeguards against political repression, for the sake of not only of scholars but also of citizens. Academic
freedom helps prevent a subtle but invidious form of majority tyranny. Democracies can most reliably foster freedom
of the mind, which is an essential part of freedom of speech and conscience, by protecting the profession of
scholars who defend unpopular ideas within universities that are free to decide who may teach, what may be taught,
how it shall be taught, and who may be admitted to study
Fighting Racism
Acceptance of all speech is key for a diverse and more inclusive
society DJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
Critics of making autonomy an essential aim of democratic education worry that it goes too far in the direction of
requiring that schools subject all beliefs and values even those religious beliefs and values, for example, that are
not essential to a well-functioning democracy to critical scrutiny. While encountering a variety of views and values
in schools is important for the development of tolerance and as a way to learn to appreciate the diverse society in
which the students live, educating students to evaluate even their parents (along with other citizens) religious
values (and other values that are not essential to democratic justice) can create an unnecessary rift between the
worldviews of parents and students (Tomasi 2001). Focusing democratic education on autonomy in the broadest
sense of the term subjecting everything to critical scrutiny on the basis of ones independent set of values is
particularly problematic when students come from cultures that do not value personal autonomy (Galston 1991;
Ben-Porath 2010a). Critics point out that democratic education can both respect a wide range of cultures and teach
mutual respect and toleration by focusing civic education on key democratic values and principles rather than by
teaching autonomy as a comprehensive moral philosophy.
Small Voices
Classrooms are meant to allow the marginalized a voice, limiting
speech silences them DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
What does it mean to recognize, in the educational practices of college and university classrooms, that all voices
are not equal? The solution is neither to invoke an absolutist sense of free speech, nor to prohibit simply and
absolutely all hostile expressions. The uniqueness of classrooms is that, ideally, they provide a public space in
which marginalized and silenced voices can respond to ignorant expressions rooted in privilege, white supremacy,
or other dominant ideologies. Unlike many public spaces in which one may encounter hate speech say, on a
street or in a shopping mall the classroom is one of the few public spaces in which one can respond and be
heard. In these classrooms, educators must deal with messy issues that others cannot or do not want to address.
Does this give educators any special Constitutional privilege or dispensation? I leave that question open. However,
to advocate that we use classrooms to critically interrogate racist and homophobic remarks is not based on an
invocation of free speech. Rather, an affirmative action pedagogy recognizes that we are not equally protected in
practice by the first amendment, and that education needs fairly to represent marginalized voices by challenging
dominant voices in the classroom.
Equal Protection
The First Amendment arms all citizens with the same verbal
ammunition DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
The authors of Words that Wound address the tension between the First and Fourteenth amendment. The tension
arises because, in fact all people are not equally protected under the law due to the institutionalized inequities within
our society. This complicates the effectiveness of the First Amendment. Scholarship in critical race theory and
educational analyses document that in recent years we find incidents of hate speech primarily to be directed at
racial, religious, or sexual minorities. Not surprisingly, one finds in turn that invocations of the right to free speech
are most often invocations to protect the right of the members of the dominant culture to express their hatred toward
members of minority culture. These authors make important legal and historical cases to support their observation
that, in practice, while the rhetoric of the First Amendment is a buzz word that makes all of us want to rally for its
principle, in practice the First Amendment arms conscious and unconscious racists Nazis and liberals alike
with a constitutional right to be racist. Racism is just another idea deserving of constitutional protection like all
ideas. Similarly, Judith Roof, a scholar from another discipline addresses classroom dynamics and argues that we
must read the appeal to the First Amendment as itself a kind of panic response in the same order as hate speech
itself.
Educators Voices
Limits on speech limit educators on what they can teach DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
Many educators who teach about social inequalities encounter this phenomenon in which the use of self-disclosure
on the part of a speaker who enjoys relative social privilege reassert their dominance. For philosophers, this throws
us into longstanding arguments regarding epistemological relativism: do all assertions carry equal weight? If not,
why not? Particularly with respect to the invocation of personal experience, how are we to rank the
painfulness/attention-worthiness of different experiences, and how much space these experiences should be
permitted within a discussion? Also in the Concerns issue, Angela Jones offers an insightful way of dealing with
such uses of self disclosure: Every semester, for instance, a self-identified white, middle-class male student will
complain that he is tired of hearing minorities whine about their oppression, usually volunteering his own problems
as evidence that he too is oppressed.I resist the temptation to cross examine him because his complaint typically
shuts down anyone who would challenge him and my pointed questions would only shut him down or create an
adversarial exchange.Instead it is my goal at those moments to authorize those who have been silenced by
connecting their previously volunteered experiences to this particular discussion. The educator might then ask the
marginalized students to discuss and explain the issues they have previously raised, and bring the discussion
around to ask: how is that analysis of racism and sexism gets cast as whining? Joness example represents a
recurrent problem: when we re-configure the conversation to foreground the experiences of marginalized groups,
those who have traditionally been at the center develop creative ways to reassert their centrality.
Neg Evidence
Political Correctness
Civil language is necessary for education and debate. LMW.
Thorne,Ashley.(AshleyThorneisexecutivedirectoroftheNationalAssociationof
Scholars,8West38thStreet,Suite503,NewYork,NY)SocialMedia,Civility,and
FreeExpression2015.SpringerScience+BusinessMediaNewYork.
Times have changed since 1915, and many of us now see a call for temperateness of language as
essentially a call for censorship. Indeed, trying to mandate civility is a slippery slope that can be used for
censorship, but the impulse to establish a culture of maturity and courtesy is a good one.Why should we care
about civility? Its not just about saying, Be nice. For one thing, civility is important because its fairshowing
equal respect for other people is a form of justice. Its also necessary for true education. If our goal is to grow
educated men and women who can think for themselves and exercise good judgment, civility is the healthy soil
that makes it possible for them to grow this way, whereas vilifying people shuts down open debate and stunts
educational growth.
Harassment
Sexual harassment is considered constitutionally protected free
speech, meaning that protecting free speech and preventing
sexual harassment are often two conflicting goals. LMW.
Dower,Benjamin(B.S.,TheUniversityofTexasatDallas,2009;J.D.expected.The
UniversityofTexasSchoolofLaw,2012)TheScyllaofSexualHarassmentandthe
CharybdisofFreeSpeech:HowPublicUniversitiesCanCraftPoliciestoAvoid
Liability.THEREVIEWOFLITIGATION[Vol.31:3.2012.
The constitutional implications of Title VII and Title DC are relatively unproblematic when prohibiting quid pro
quo sexual harassment. No court has ever recognized a constitutional right to discriminate based on sex.
Sexual discrimination is equated with an unwanted sexual advance in the workplace paired with a threat or
inappropriate expression of favoritism. ^ However, the hostile work environment cause of action has the
potential to bump up against First Amendment protections. Twentieth-century First Amendment jurisprudence
has consistently emphasized that speech may not be banned merely because of its offensive nature. As
Justice Holmes famously stated, "[i]f there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thoughtnot free thought for those who agree with us but
freedom for the thought that we hate."^^ Even more on-point was Justice Brennan's observation in Texas v.
Johnson, a landmark 1989 case in which the Supreme Court held an anti-flag burning statute unconstitutional:
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or disagreeable." " The Supreme
Court has never directly addressed the potential conflict between Title VII and Title DC sexual harassment
prohibitions and the First Amendment protection of free speech. While the Court has recognized several forms
of expression that are not protected by the First Amendmentincluding speech that is directed at inciting or
producing imminent lawless action and is likely to do so,"*' fighting words,'*^ and obscenity"*^much legally
prohibited sexual harassment does not fall within any of those categories. As the Third Circuit put it: [T]here is
no "harassment exception" to the First Amendment's Free Speech Clause. . . . We [have] explained that while
there is no question that nonexpressive, physically harassing conduct is entirely outside the ambit of the free
speech clause, when laws against harassment attempt to regulate oral or written expression on such topics,
however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment
implications.'*''
Colleges who try to prevent this harassment get their codes struck
down as unconstitutional. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
While increasing numbers of individuals have been reporting that they have been the victims of hate speech,
the courts have been striking down legislation intended to provide the targets of hate speech with some
protection from it. Some universities initially responded to the recent proliferation of hate speech by instituting
antiharassment codes or by enforcing existing onesonly to have these codes ruled unconstitutional. The
courts have ruled, in several recent cases, that even if hate speech constitutes a form of harassment or race or
sex discrimination, it is protected under the First Amendment. 14
This allows students to use hate symbols and hate objects as well
as use harassing speech. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
Likewise, in John Doe v. University of Michigan, an opinion ruling unconstitutional a University of Michigan
policy on discrimination and discriminatory 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 political and legal institutions is to mediate the appropriate balance between
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 misdemeanor 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. 19
The courts have failed to put forth a valid reason for why hate
speech deserves to be protected. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
Philosophers have the luxury (not shared by judges or university administrators) of being able to focus on
whether the courts stance on hate speech is justified, not simply on what the courts recent decisions have
been. I think the fact that the United States is virtually unique among Western nations in providing legal
protection for hate speech should prompt a response to the Courts doctrine that goes beyond unreflective selfcongratulation. 31 The U.S. courts have, thus far, failed to develop a consistent and principled free speech
doctrine which would explain why hate speech should be protected. Rather, the courts decisions in free
speech cases have resulted in what Laurence Tribe has called a patchwork quilt of exceptions with no
underlying doctrine that unifies and explains them. 32 Can such a doctrine be found?
Hate speech silences its targets, which violates their right to free
speech. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
Furthermore, if hate speech has, as some have argued, the effect of silencing the bystanders, or at least
preventing others from listening to what they have to say, then audiences are being deprived of their
speech.102 If restrictions on hate speech could help to prevent this silencing effect, then there would be an
additional audience interest in having such restrictions. For all of these reasons given above, this fourth
account of autonomy fails to yield an argument against restricting hate speech
Supreme Court
Brown v Board of Education sets the precedent on racist speech in
public schools DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The key to this understanding of Brown is that the practice of segregation, the practice the Court held inherently
unconstitutional, was speech. Brown held that segregation is unconstitutional not simply because the physical
separation of black and white children is bad38 or because resources were distributed unequally among black and
white schools. 39 Brown held that segregated schools were unconstitutional primarily because of the message
segregation conveys-the message that black children are an untouchable caste, unfit to be educated with white
children. Segregation serves its purpose by conveying an idea. It stamps a badge of inferiority upon blacks, and
this badge communicates a message to others in the community, as well as to blacks wearing the badge, that is
injurious to blacks. Therefore, Brown may be read as regulating the content of racist speech. As a regulation of
racist speech, the decision is an exception to the usual rule that regulation of speech content is presumed
unconstitutional.
Non-Speech
Non-speech elements can violate the First Amendment
Segregation Laws DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
If, for example, John W. Davis, counsel for the Board of Education of Topeka, Kansas, had been asked during oral
argument in Brown to state the Board's purpose in educating black and white children in separate schools, he would
have been hard pressed to answer in a way unrelated to the purpose of designating black children as inferior.44 If
segregation's primary goal is to convey the message of white supremacy, then Brown's declaration that segregation
is unconstitutional amounts to a regulation of the message of white supremacy. 45 Properly understood, Brown and
its progeny require that the systematic group defamation of segregation be disestablished. 46 Although the
exclusion of black children from white schools and the denial of educational resources and association that
accompany exclusion can be characterized as conduct, these particular instances of conduct are concerned
primarily with communicating the idea of white supremacy. The non-speech elements are byproducts of the main
message rather than the message simply a by-product of unlawful conduct
Analysis: Essentially what this card is saying is what matters is the actions that come
out of said speech. In the given example of Brown v. Board what mattered is that a
message of white supremacy was being sent to the people of the nation, which is
another violation of the Constitution. Even though on face there is little connection to
free speech, when non-speech and intents of said speech are looked at a deeper
message comes to play.
Segregation
Racial speech restricts the liberty of non-white people DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Racism is both 100% speech and 100% conduct. Discriminatory conduct is not racist unless it also conveys the
message of white supremacy-unless it is interpreted within the culture to advance the structure and ideology of
white supremacy. Likewise, all racist speech constructs the social reality that constrains the liberty of non-whites
because of their race. By limiting the life opportunities of others, this act of constructing meaning also makes racist
speech conduct.
banning the expression of unpopular views."' Thus, Cohen relies on a view of the state as an institution at once
without moral commitments sufficient to provide justifiable criteria for prohibiting certain forms of speech, and
subject to popular control such that prohibition of any form of speech likely will entail the pursuit of the political
program of whatever majority might temporarily gain control of government machinery.
Free Zones
College regulations needed to create a safe environment for
students DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The proposed Stanford regulation, and indeed regulations with considerably broader reach, can be justified as
necessary to protect a captive audience from offensive or injurious speech. Courts have held that offensive speech
may not be regulated in public forums such as streets and parks where a listener may avoid the speech by moving
on or averting his eyes, but the regulation of otherwise protected speech has been permitted when the speech
invades the privacy of the unwilling listener's home or when the unwilling listener cannot avoid the speech. Racists
posters, flyers, and graffiti in dorms, classrooms, bathrooms, and other common living spaces would fall within the
reasoning of these cases. Minority students should not be required to remain in their rooms to avoid racial assault.
Minimally, they should find a safe haven in their dorms and other common rooms that are a part of their daily
routine. I would argue that the university's responsibility for ensuring these students received an equal educational
opportunity provides a compelling justification for regulations that ensure them safe passage in all common areas. A
black, Latino, Asian or Native American student should not have to risk being the target of racially assaulting speech
every time she chooses to walk across campus. The regulation of vilifying speech that cannot be anticipated or
avoided would not preclude announced speeches and rallies where minorities and their allies would have an
opportunity to organize counter-demonstrations or avoid the speech altogether.
Quantifiable Suffering
Racially motivated speech has long lasting psychological impacts
DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Psychic injury is no less an injury than being struck in the face, and it often is far more severe.1 14 Brown speaks
directly to the psychic injury inflicted by racist speech in noting that the symbolic message of segregation affected
"the hearts and minds" of Negro children "in a way unlikely ever to be undone."1 15 Racial epithets and harassment
often cause deep emotional scarring, and feelings of anxiety and fear that pervade every aspect of a victim's life.
Many victims of hate propaganda have experienced physiological and emotional symptoms ranging from rapid pulse
rate and difficulty in breathing, to nightmares, post-traumatic stress disorder, psychosis and suicide.'
Democracy
Free speech does not mean a free society DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
In striking a balance, we also must think about what we are weighing on the side of speech. Most blacks-unlike
many white civil libertarians-do not have faith in free speech as the most important vehicle for liberation. The first
amendment coexisted with slavery, and we still are not sure it will protect us to the same extent that it protects
whites. It often is argued that minorities have benefited greatly from first amendment protection and therefore should
guard it jealously. We are aware that the struggle for racial equality has relied heavily on the persuasion of peaceful
protest protected by the first amendment, but experience also teaches us that our petitions often go unanswered
until they disrupt business as usual and require the self-interested attention of those persons in power.
Academic Discourse
Universities can enhance public discourse by limiting speech in
certain cases DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The university should properly be seen as a distinct social entity, whose commitment to enhancing the quality of
speech justifies setting minimum standards for the manner of speech among its members. This distinction exists in
tension with the constitutional or political principle that accords students first amendment rights of freedom of
expression against state universities. The difficulty comes in articulating the bases for these ideas adequately to
permit the law to draw an appropriate boundary between the educational authority of the school and the political
freedom of the student. For a variety of reasons, courts have performed this function inadequately, so that most
lawyers now seem to accept the premise that a student's racial vilification of another must be examined as a
component of the student's political rights. It seems to me that this phrasing of the question leaves out the
indispensable values of academic life.
Even if social justice causes are good, the means used to support
them are wrong. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Even some who are sympathetic to the demands of student protesters have questioned certain
of their tactics. In a January 14, 2016 essay in The New York Review of Books, The Trouble at
Yale, Georgetown Law Professor David Cole wrote:
The emergence of a nationwide movement for racial justice, in which students have been
inspired to voice their grievances and challenge the status quo, is a welcome change from the
much-bemoaned apathy of previous generations. But the students have sometimes sought to
suppress or compel the expressions of others, a fundamentally illiberal tactic that is almost
certain to backfire, and that risks substituting symbol for substance in the struggle for
justice.241
College limitations on speech trade off with student led efforts for
real change. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
In his Novemmber 2015 artitle in Tablet Magazine, Person Up, Yale, Yale graduate and adjunct
professor Mark Oppenheimer describes students who have elected to suspend their adulthood,
to put it in escrow for four years, and to willingly bow before the judgment of their elders.251
He suggests that students have been overly focused on seeking solutions from administrators,
rather than taking matters into their own hands: If ending racism (or racist Halloween
costumes) is your goal, it will actually work better to shame students who wear such costumes
than to ask committees to send annual emails I would beg these studentsmy studentsto
look at us, their teachers and administrators, and ask themselves: Do you really want more of
us? More control, more intrusion, more say-so?252
Writing in December, 2014 in Inside Higher Ed, former Barnard College President Judith Shapiro
notes a tendency toward what we might see as self-infantilization on the part of students, who
are now in the habit of seeking formal institutional support and approval for the kinds of
activities they used to be capable of managing themselves.253
The American Enterprise Institute points out that this emphasis on top-down solutions could have
concrete financial costs for students. They have argued that he big winners in the current bout of
campus protests will be administrators who will be able to justify adding multiple non-faculty
positions to university rosters in order to deal with student demands, passing on the costs to
students in the form of higher tuition and fees.254
emerged out of viewpoints that swam against the currents of public opinion. And as John Stuart
Mill famously noted, even odious ideas can lead to progress, as we sharpen our understanding of
the truth by observing its collision with error in public debate.257
Censorship
Censorship of student speech leads to abuse by educators DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
Post-Hazelwood tales of high school officials engaging in censorship abound. An Indiana principal censored an
accurate story about a girls tennis coach who stole $1,000 that players had paid for court time. A New York
administrator banned a true report that his school of 3,600 students contained only two functional restrooms. A
Florida principal fired the high schools yearbook editor after she opposed his decision not to run a senior picture of
a lesbian student who was wearing a tuxedo. In Tennessee, an administrator confiscated every copy of a newspaper
that contained stories about birth control and tattoos. These instances of censorship are but a small sample of the
hundreds that the SPLC has documented
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
Because Hazelwood, intentionally or otherwise, greatly expanded secondary school officials powers to censor
student speech on a host of topics,115 college effectively provides many young people with their first taste of largely
unfettered free speech rights. If Hazelwood follows students to universities, however, their introduction to a fully
functioning free press could be delayed for years longer. This result would be disastrous for the journalism
profession, which soon would find its ranks filled with freshly minted journalism school graduates inadequately
prepared to pursue controversial stories aggressively and to endure the backlash therefrom. It also likely would
exacerbate what appears to be a disturbing trend in American society: the existence of a sizable plurality of citizens
who do not understand the importance of free speech rights. A 2004 University of Connecticut survey of more than
112,000 high school students found that 32% of them think the press has too much freedom and that 36% believe
newspapers should clear their reporting with the government before publication.116 Meanwhile, the 2005 State of
the First Amendment survey discovered that those beliefs often do not change much once citizens reach the age of
maturity; 23% of the surveys adult respondents said the First Amendment goes too far in the rights it guarantees,
down from almost 50% in 2002 (shortly after the September 11, 2001, terrorist attacks).117 The extension of
Hazelwood to colleges could lead an even larger number of Americans, during some of their most formative years,
to become more accepting of official limitations on the content of their speech.118 That, in turn, could pave a
dangerous path toward vastly expanded federal and state speech regulation and a society in which free speech is
nothing more than a distant memory from an earlier time.
Affirmative Action
AffirmativeActionhascomeoutoffreespeechprovisionsinUniversitiesDJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
One challenge faced by colleges and universities is how to provide adequate opportunities on a nondiscriminatory
basis for as many students who are willing and able to benefit from higher education when primary and secondary
schooling is inadequate. One controversy over the past several decades has focused on whether and, if so, what
kind of affirmative action is justified (Cohen, Nagel, & Scanlon 1977; Fullinwider 1980; Hellman 2008). The
strongest defense of affirmative action connects it to the widely accepted principle of nondiscrimination. Although no
one has a right to be admitted to a particular institution of higher education, everyone has a right not to be
discriminated against in admissions. Nondiscrimination as it applies to university admissions has two parts. First,
qualifications for admission must be relevant to the legitimate purposes of the university. Second, all applicants who
qualify should be given equal consideration for admissions.
Hostile Environment
Hostile verbal environments are created through speech which is
protected by the First Amendment DJS
Balkin,JackM.[KnightProfessorofConstitutionalLawandtheFirstAmendment,Yale
LawSchool]"Freespeechandhostileenvironments."ColumbiaLawReview(1999):
22952320.
Although threats are not protected by the First Amendment, hostile environments do not always involve threats. A
hostile environment is made up of individual acts of discriminatory speech and other conduct by all the persons who
inhabit a workplace, including managers, employees, and even occasionally clients and customers. In hostile
environments, the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victims employment and create an abusive working environment . .
. .6 Some of this behavior may be directed at particular employees; other elements may be directed at no one in
particular but may help foster an abusive environment. Even if individual acts do not constitute a hostile environment
separately, they can be actionable when taken together. The test is whether the conduct, taken as a whole, would
lead to an environment that the employee reasonably perceives as abusive.
Sexual Harassment
Verbal sexual harassment is Constitutional yet it is demeaning of
women DJS
Benson,DonnaJ.,andGreggE.Thomson.[DepartmentofSociology,Universityof
California]"Sexualharassmentonauniversitycampus:Theconfluenceof
authorityrelations,sexualinterestandgenderstratification."Socialproblems29.3
(1982):236251.
Our respondents estimated how frequently women students are sexually harassed at Berkeley and how serious a
problem it is for those who are harassed. A majority (59 percent) estimated that sexual harassment occurs
"occasionally," nine percent thought it occurred "frequently," and less than two percent said it "almost never"
happens. There was a high degree of consensus, therefore, that sexual harassment is not an isolated or rare
phenomenon and indeed is likely to be at least an occasional occurrence. Our respondents were divided on whether
the problem of harassment is "very serious" (37.9 percent), "moderately serious" (34.4 percent), and only "mildly
serious" or less (27.7 percent). As the accounts of actual sexual harassment indicate there is a considerable range
in the degree of difficulty which sexual harassment presents for individual women. Results for our entire sample,
however, suggest an overall perception that sexual harassment is a problem.
Government Intervention
Government institutions can interfere into free speech DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
The first amendment does not say that Congress shall make no law abridging the freedom of action, the freedom of
contract, the freedom to sell heroin, or the freedom to fly a kite. The first amendment is 'not a total prohibition of
governmental action, nor can it sensibly be taken to apply the same burden of justification to all governmental
regulation. Implicit in the first amendment is the notion that there is on the one hand a general standard of
justification for governmental action, and on the other hand a higher standard when speech is the object of the
regulation. Considerations that would be sufficient to justify official action not constrained by a specific constitutional
prohibition may be insufficient to justify restrictions on speech. The first amendment protects speech even though it
may produce consequences that could be regulated constitutionally if those consequences were caused by conduct
other than speech.
Scapegoating
American crusaders are going after college students and free
speech to blame for the moral crisis in America. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
Whenever American civil society has been under great stress, if not, indeed, falling apart, selfappointed champions of the conventional wisdom and traditional values have ginned up public
paroxysms of alarm and rage at selected internal enemies to blame for the crisis.
In the 1690s, it was the witches, hysterical women and girls whom Puritans said had been taken
by Satan. In the 1840s, it was Catholic immigrants, who were said by a presidential candidate to
be besotted with rum, Romanism, and rebellion. In every decade before and since then, it has
been feral Negroes. In the 1920s, it was anarchists, Reds, and pushy Hebrews. In the 1950s, it
was American Communist spies for Stalin, the Satan of that time. In the 1960sm, it was hippies,
riotous blacks and traitorous opponents of the Vietnam War. Since 2001, it has been American
Muslims and, in 2003, it was critics of the Iraq War.
Now a new cohort of crusaders has found a new internal enemy: coddled, petulant college
students and some of their professors, who, were being told, are forcing university
administrators to silence and punish others who exercise freedoms of inquiry and expression in
ways that offend and hurt the complainers.
inherent in the blunders and deceits of the conventional wisdoms own champions, who most of
us have a stake in believing and following at least some of the time.
So the crusaders and their followers find an almost seductive, even thrilling relief and release in
assailing the more-vulnerable targets being presented to them. Some even find the prospect of
naming, sighting, and punishing the enemy so thrilling that they go right out and join the hunt
for prey that can be held up plausibly as proof of the disloyalty and danger: Sacco and Vanzetti
as anarchists, Julius and Ethel Rosenberg as Jewish Communist spies, Willie Horton and O.J.
Simpson as feral blacks, and so on. It works in the tawdry, predictable ways that leaders of these
rituals understand only too well.
Once a public paroxysm has been exposed to sunlight and has begun to subside, many people
begin to regard its chief witch-hunters, commie hunters, and prurient scourges of decadent youth
as more hysterical, sinister, and destructive of their own society than their scapegoated prey
ever were.
That new clarity can prompt regret and even penitence among the scapegoaters. One Sunday in
1697, seven years after the last execution of a witch in Salem, Massachusetts, Judge Samuel
Sewall, who'd presided over the trials, stood silently, head bowed, in Boston's Old South Meeting
House as the pastor, Samuel Willard, read aloud a note from him confessing his "guilt
contracted... at Salem" and desired "to take the blame and shame of it, asking... that God...
would powerfully defend him against all temptations for Sin for the future...."
Senator Joe McCarthy never asked forgiveness for brandishing his largely fictitious lists of
Communists in government and universities and for ruining so many lives and striking terror
into many others, but he fell apart under scrutiny. Defense Secretary Robert McNamara, harddriving architect of a war in Vietnam that began with the largely fabricated Gulf of Tonkin
incident and continued with fraudulent warnings of danger to the Free World, confessed tearfully
in The Fog of War that the war was undertaken with deceit and delusion. Republican political
operative Lee Atwater, whose television ads hyping feral blacks helped cost Democratic
presidential candidate Michael Dukakis the 1988 election, begged forgiveness from AfricanAmericans on his deathbed.
Johnston wasnt soaring alone. His post went viral on conservative sites under headlines like
Regressive Liberalism, and when Lukianoff appeared on Washington, DCs Diane Rehm show, a
listener posted this comment:
Professors should tell these sensitive darlings to go pound sand if they don't like what they are
hearing. What do they expect when they graduate and enter the real world of work, and find out
their boss and co-workers don't give a darn about their 'feelings'? Or if they are discussing
politics or sports around the coffee pot? And God forbid these babies ever read, or engage
people on, this comment board. Microagressions galore! Their heads will explode!
This is the language of white men who are nostalgic for youths they dont clearly remember
they might wince to recall some of the things they did and said at 19. Some of them may be
feeling marginal in their own country and are determined to do something about itor to have
somebody else do something about it. In "The Authoritarian Personality Revisited," Peter F.
Gordon recalls Theodor Adornos and colleagues construction of a distinctive attitudinal
structure, called authoritarianism, which consisted of nine characteristics, including a
tendency to be on the lookout for, and to condemn, reject, and punish people who violate
conventional values.
Aff Counters
A2 Political Correctness
While the political correctness movement has good intentions, it is
important that students do not become walled off from those
who have different views. LMW.
Edwards,HaleySweetland(HaleySweetlandEdwardsisaformerstaffreporterforthe
SeattleTimes.HerfreelancereportinghasappearedintheLosAngelesTimes,the
NewYorkTimesonline,GlobalPost,ColumbiaJournalismReview,MentalFloss,
andNewYorkMagazine)Thefallacyoffreespeech.TimeDecember14,2015.
This wave of political correctness is born, essentially, of a noble idea. Minority students, facing bullying or
belittlement, argue for the need to protect themselves, to create a safe space. As one Yale undergraduate put
it, Its about creating a home here. But in creating that space, these advocates risk walling themselves off
from the unexpected, albeit sometimes ugly, reality of engaging in pitched debate with people with whom they
do not see eye to eye. They are rejecting the sometimes crushing but always formative experience of
discovering that you disagree, deeply and fundamentally, with a friend, and then deciding to stay friends
anyway. It is a crucial lesson for anyone living in a pluralistic democracy, especially one in which Donald
Trump, the human equivalent of a trigger warning, dominates the Republican field.
Whenever we argue that racist epithets and vilification must be allowed, not because we would condone them
ourselves but because of the potential danger that precedent would pose for the speech of all dissenters,106 we are
balancing our concern for the free flow of ideas and the democratic process and our desire to furher equality. This
kind of categorical balance is struck whenever we frame any rule-even an absolute rule. It is important to be
conscious of the nature and extent of injury to both concerns when we engage in this kind of balancing. In this case,
we must place on one side of the balance the nature and extent of the injury caused by racism. We also must be
very careful, in weighing the potential harm to free speech, to consider whether the racist speech we propose to
regulate is advancing or retarding the values of the first amendment.
When one person is denied the right to free speech, all are the
denied the right to free speech. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
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.
effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces
of intolerance.
Limiting free speech treats a symptom but ignores the cause. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
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.
Speech codes, by simply deterring students from saying out loud what they will continue to think
in private, merely drive biases underground where they can't be addressed. In 1990, when Brown
University expelled a student for shouting racist epithets one night on the campus, the institution
accomplished nothing in the way of exposing the bankruptcy of racist ideas.
their right to participate fully in campus life without being discriminated against. Campus
administrators on the highest level should, therefore,
speak out loudly and clearly against expressions of racist, sexist, homophobic and other bias,
and react promptly and firmly to acts of discriminatory harassment;
create forums and workshops to raise awareness and promote dialogue on issues of race, sex
and sexual orientation;
intensify their efforts to recruit members of racial minorities on student, faculty and
administrative levels;
and reform their institutions' curricula to reflect the diversity of peoples and cultures that have
contributed to human knowledge and society, in the United States and throughout the world.
ACLU Executive Director Ira Glasser stated, in a speech at the City College of New York: "There is
no clash between the constitutional right of free speech and equality. Both are crucial to society.
Universities ought to stop restricting speech and start teaching."
The idea that this is a race issue and not a free speech issue is not
borne out by the evidence. LWZ
ConorFriedersdorf[staffwriteratTheAtlantic,wherehefocusesonpoliticsandnational
affairs.HelivesinVenice,California,andisthefoundingeditorofTheBestof
Journalism,anewsletterdevotedtoexceptionalnonfiction],342016,"TheGlaring
EvidenceThatFreeSpeechIsThreatenedonCampus,"Atlantic,
http://www.theatlantic.com/politics/archive/2016/03/theglaringevidencethatfree
speechisthreatenedoncampus/471825/
Harpers ally in the debate, the Yale philosophy Professor Jason Stanley, didnt perform any
better. During portions the event, he claimed that folks on the other side, who say free speech is
under threat, arent really engaged in a debate about free speechhe said the real debate is
about racism and anti-racism and about leftism. In this telling, free speech is being invoked as a
cover, in service of less-sympathetic agendas.
That grossly distorted the positions taken by his opponents at the Intelligence Squared debate.
And the broader claim about free-speech defenderswhich is lamentably common in public
discourse on the subjectcan be refuted a dozen different ways. Heres one: Many college
newspapers are struggling with free-speech issues that have nothing to do with race or leftism,
as David Wheeler reported.
Or consider another narrow area of campus expression that is under threat: the formal speech,
delivered to a broad audience. Well restrict our threat survey to a single year.
In 2015 alone, Robin Steinberg was disinvited from Harvard Law School, the rapper Common was
disinvited from Kean University, and Suzanne Venker was disinvited from Williams College. Asra
Nomani addressed Duke University only after student attempts to cancel her speech were
overturned. UC Berkeley Chancellor Nicholas Dirks participated in an event on his own campus
that student protestors shut down. Speakers at USC needed police to intervene to continue an
event. Angela Davis was subject to a petition that attempted to prevent her from speaking at
Texas Tech. The rapper Big Sean faced a student effort to get him disinvited from Princeton. Bob
McCulloch faced a student effort to disinvite him from speaking at St. Louis University. William
Ayers was subject to an effort to disinvite him from Dickinson School of Law. Harold Koh faced a
student effort to oust him as a visiting professor at New York University Law School.
That list includes speakers from the right and the left. It involves several controversies that have
nothing to do with antiracism. How many examples are needed to persuade Stanley that there is
a problem? Because I only stopped listing them to avoid being tedious. Those examples are a
mere subset of 2015 efforts to censor speakers based on their viewpoints. There are still more
from 2014. Further roundups could be written about 2013, 2012, and beyond. Speech is
frequently threatened. Speeches are regularly disrupted. Some are cancelled every year.
To perceive no threat is to ignore reality.
of Regents of University of Wisconsin (1991), a federal district court struck down the policy,
writing:
The suppression of speech, even where the speechs content appears to have little value and
great costs, amounts to governmental thought control.
Similar problems occurred at Michigan, which had its share of disturbing racially charged
incidents. At Michigan, a student disc jockey allowed racist jokes to be aired. University officials
reacted with a speech code. The problem was that officials applied the policy to chill the speech
of students engaged in classroom discussion or academic research.
A federal district court judge invalidated the policy in Doe v. University of Michigan (1989),
writing:
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.
The problem was that these codes were not drafted with sufficient precision. Courts ruled that
these polices were either too broad or too vague.
Campus speech codes are too broad and suffer from vagueness
problems. LWZ
DavidL.HudsonJr.[AdjunctProfessorofLaw,VanderbiltUniversity,FirstAmendment
expertandlawprofessorwhoservesasFirstAmendmentOmbudsmanforthe
NewseumInstitutesFirstAmendmentCenter],612016,"HowCampusPolicies
LimitFreeSpeech,"HuffingtonPost,http://www.huffingtonpost.com/the
conversationus/howcampuspolicieslimit_b_10249690.html
Overbreadth and vagueness problems
A policy is too broad if it prohibits speech that ought to be protected in addition to speech that
can be prohibited. In legal terms, this is called overbreadth. For example, a policy that prohibits
offensive and annoying speech sweeps too broadly and prohibits lawful expression.
A policy is too vague if a person has to guess at its meaning. Vagueness is rooted in the notion
that it is fundamentally unfair to punish someone when they did not know that their speech
violated the policy.
For example, the University of Michigan had a policy that prohibited stigmatizing or victimizing
individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed,
national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.
In Doe v. University of Michigan, a federal district court judge ruled the policy too vague, writing:
Students of common understanding were necessarily forced to guess at whether a comment
about a controversial issue would later be found to be sanctionable under the Policy.
Controversies still abound over speech codes at colleges and universities. The Foundation for
Individual Rights in Education (FIRE) regularly challenges policies that it believes run afoul of the
First Amendment.
In its annual report, the group contends that nearly half of the speech codes at 440 colleges
infringe on First Amendment free speech rights. FIRE contends in its report that any speech
code in force at a public university is extremely vulnerable to a constitutional challenge.
Free speech zones dont advance free speech but rather limit it.
LWZ
DavidL.HudsonJr.[AdjunctProfessorofLaw,VanderbiltUniversity,FirstAmendment
expertandlawprofessorwhoservesasFirstAmendmentOmbudsmanforthe
NewseumInstitutesFirstAmendmentCenter],612016,"HowCampusPolicies
LimitFreeSpeech,"HuffingtonPost,http://www.huffingtonpost.com/the
conversationus/howcampuspolicieslimit_b_10249690.html
Restricting where students can have free speech
In addition, many colleges and universities have free speech zones. Under these policies, people
can speak at places of higher learning in only certain, specific locations or zones.
While there are remnants of these policies from the 1960s, they grew in number in the late
1990s and early 2000s as a way for administrators to deal with controversial expression.
These policies may have a seductive appeal for administrators, as they claim to advance the
cause of free speech. But, free speech zones often limit speech by relegating expression to just a
few locations. For example, some colleges began by having only two or three free speech zones
on campus.
The idea of zoning speech is not unique to colleges and universities. Government officials have
sought to diminish the impact of different types of expression by zoning adult-oriented
expression, antiabortion protestors and political demonstrators outside political conventions.
In a particularly egregious example, a student at Modesto Junior College in California named
Robert Van Tuinen was prohibited from handing out copies of the United States Constitution on
September 17, 2013 - the anniversary of the signing of the Constitution.
Van Tuinen was informed that he could get permission to distribute the Constitution if he
preregistered for time in the free speech zone. But later,
Van Tuinen was told by an administrator that he would have to wait, possibly until the next
month.
In the words of First Amendment expert Charles Haynes, the entire campus should be a free
speech zone. In other words, the default position of school administrators should be to allow
speech, not limit it.
Zoning speech is troubling, particularly when it reduces the overall amount of speech on campus.
And many free speech experts view the idea of a free speech zone as moronic and oxymoronic.
College or university campuses should be a place where free speech not only survives but
thrives.
A2 Minority Harrassment
Speech restrictions are not an effective response against social
oppression. LMW.
Morissey,Anna(*J.D.Candidate,May2016,LoyolaUniversityChicagoSchoolofLaw
FreeSpeechInTheQuad:WhyFirstAmendmentOppressionIsNotThePathTo
RacialJusticeEducationLawAndPolicyFinalNote.LoyolaUniversityChicago
SchoolofLaw.2016
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?
Morissey,Anna(*J.D.Candidate,May2016,LoyolaUniversityChicagoSchoolofLaw
FreeSpeechInTheQuad:WhyFirstAmendmentOppressionIsNotThePathTo
RacialJusticeEducationLawAndPolicyFinalNote.LoyolaUniversityChicago
SchoolofLaw.2016
The touchstone of the First Amendment, and any of free society, is freedom of expression no matter if the
government or others may disagree. It allows for individual freedom of mind, and places an important check on
those in power.51 First Amendment oppression would set a dangerous precedent and is not the answer to any
social intolerance. [F]reedom for the thought that we hate is often important to the discovery of truth, because
sometimes viewpoints change.52 Free speech and freedom of association are the tools that empower a
minority tools that must not be diminished.53 Ideas in vogue today may not be in vogue tomorrow. Therefore,
we must be eternally vigilant against
attempts to check the expression of opinions that we loathe.
A2 Microaggressions
A focus on microaggressions silences different viewpoints and
hurts academic freedom. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Focus on Microaggressions Is Misplaced: Amounts to Pernicious Policing of Speech
In June 2015, UCLA law professor Eugene Volokh argued in The Washington Post that the
University of Californias long list of microaggressions (including America is the land of
opportunity; Everyone can succeed in this society, if they work hard enough; and Affirmative
action is racist) wasnt merely about potential offense:
Its about suppressing particular viewpoints. And whats tenure for, if not to resist these attempts
to stop the expression of unpopular views? But Im afraid that many faculty members who arent
yet tenured, perhaps even quite a few tenured faculty members as well, will get the message
that certain viewpoints are best not expressed when youre working for UC, whether in the
classroom, in casual discussions, in scholarship, in op-eds, on blogs, or elsewhere. A serious
blow to academic freedom and to freedom of discourse more generally, courtesy of the
University of California administration.140
unduly on even the most minor harms. They also believe that this focus unproductively sows
conflict between people who may not be remotely at odds but accidentally stumble into
language that causes offense, then triggering a stronger-than-warranted reaction born of a
commitment not to tolerate microaggressions
Neg Counters
A2 Political Change
Universities should not be political institutions. LMW.
Thorne,Ashley.(AshleyThorneisexecutivedirectoroftheNationalAssociationof
Scholars,8West38thStreet,Suite503,NewYork,NY)SocialMedia,Civility,and
FreeExpression2015.SpringerScience+BusinessMediaNewYork.
Politically, incivility can come from both the left and the right. The role that properly falls to the university is to
model a better way. However, one reason we have the problem of incivility in campus settings today is the rise
of the idea that the university exists primarily for transforming society rather than primarily as a place of
learning. This activist focus leads to politicization of the academy, which leads to wars over ideology. There are
constructive ways of weighing competing ideologies, but universities tend to take sides and preclude an open
airing of different perspectives. Theres much more to be said about this, but for now I will simply state that we
must remember that the main goal of higher education is to learn about the world, not to change it.
A2 General Solvency
Free speech movements actually hurt free speech. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
If Lukianoffs video was meant to correct the politically correct, it had the contradictory effect of
chilling the freedoms of expression that the FIRE and Scott Johnston claim to defend even in
highly offensive speech. (You do realize that you don't have the right not to be offended, right?,
Johnston had said to the Native American students. And Erika Christakis, in her open letter on
Halloween costumes, had asked, Is there no room anymore for a child or young person to be a
little bit obnoxious a little bit inappropriate or provocative or, yes, offensive? American
universities were once a safe space not only for maturation but also for a certain regressive, or
even transgressive, experience; increasingly, it seems, they have become places of censure and
prohibition.)
Hundreds of white students had their first intimate conversations about race with classmates of
color. A thousand, of all colors, joined a vibrant campus March of Resilience. Another thousand
convened in the chapel, where I saw them hear classmates and professors speak from their
deepest humanity, without malevolence or duplicity. As the author of Liberal Racism and a
journalist who lived among and wrote about angry black New Yorkers for years, I know gratuitous
racial theater when I see it. I didnt see much of it at Yale.
I was disturbed by the discrepancies between what was actually happening on campus and how
it was being portrayed in the media, said one of my students, a young white man of classically
establishment bearing. It wasnt exactly a protest. It was a moment of education. The entire
campus was confronting collective emotions and challenges in a way Id never experienced. It
was beautiful. And it needed to be emotionalso it was."
Yet what many Americans know about such moments of education is what theyre being shown
by a campaign thats peddling antipathy and an ideology that condemns earnest, even if
immature, students and protective administrators but that touts free markets as better
guarantors of individual rights. Are they?
Cases
Aff Case
Introduction:
One mans vulgarity is another mans lyric" because Justice Harlans words ring so true in this
round today I affirm the resolution, Resolved: Public colleges and universities ought not restrict
any Constitutionally protected free speech.
Definitions:
Free Speech -- Schauer,
Frederick.[ Associate Professor of Law, Marshall-Wythe School of Law, College of William and Mary. A.B. 1967; M.B.A. 1968,
Dartmouth; J.D. 1972, Harvard.] "Speech and Speech--Obscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language." Geo. LJ 67
(1978):
899.
decisions for ignoring the obvious. If pornography is a form of speech, according to the dictionary or according to ordinary usage, pornography must be a form of speech for first
amendment purposes. If, however, ordinary usage supplies us with the definition of the word "speech," then what excludes from first amendment coverage the many other
scope of the first amendment and those that are not, and at the same time to distinguish between coverage and protection.
Observation:
The resolution only applies to public institutions which are part of the federal government, so by
extension universities and colleges are an arm of the federal government. Because they are part
of the government the burden becomes much greater for limitation of speech.
Value: Rawlsian Justice
In order to give all people, the fair access to rights that they are do my value will be Rawlsian
Justice. Rawls defines his interpretation on Justice as fairness. Allowing all people the equal
opportunity to have their rights granted without limitations creates a society that is better off.
Value Criterion: Market Place of Ideas
The way in which justice can be achieved is with my value criterion of market place of ideas. The
marker place of ideas is loosely based on the concepts of a free market economy. Just like a
market when anyone can say what they want self-policing happens and the harmful hate speech
slowly gets eliminate The best way to think about this value criterion is with a bushel of apples
with most being fresh and delicious, and a few being rotten. If the apples were to go out for sale
eventually all the good ones would be sold and the few bad ones would not and then disappear.
This ultimately achieves justice because the ideals of fairness are happening because everyone
is being treated in an appropriate manor and their rights are being better respected.
Contention One:
Contention 1: Students are harmed by limitations on speech
Protection of students and their rights is one of the main goals on campuses across the country,
however,
The rules for punishing racist insults that universities have recently adopted reflect prevailing views about the constitutional authority of universities in this area.
Current
An
interpretive guide, prepared by the University's Office of Affirmative Action, listed
activities and statements apparently violative of the policy, including, "A male
student makes remarks in class like 'Women just aren't as good in this field as men.'
"64 The policy was challenged in Doe as vague and overbroad by a psychology graduate student who was concerned that he might be sanctioned for classroom discussion of
"controversial theories positing biologically-based differences between sexes and races.65 The court held the policy to be unconstitutionally
overbroad and vague; it suggested, however, that a more narrowly drawn regulation might be upheld.
ancestry, age, marital status, handicap or Vietnam-era veteran status," and poses some kind of "threat" or "interfer[es]" with a person's university endeavors. 63
This policy of limiting and defining what isnt allowed takes away from the learning environment
from which people are in. Furthermore,
Truth and education is a universities goal and censorship harms this
Byrne, J. Peter. [Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399.
The university's first commitment is to truth. As argued above, the university does not manifest this commitment to truth by
licensing all expression. Rather, truth is equated with knowledge, precepts, or hypotheses tentatively established through painstaking, expert, and disinterested inquiry.95
Students come to the university to learn disciplines of thought, whether in the sciences or the humanities,
that are more likely to solve problems or contribute to constructive discourse than
the more subjective, flabbier, and less coherent thinking to which they were limited
upon matriculation. The commitment to forms of thought and expression conducive to
truth and coherence lies at the core of academic values; without this commitment, the
university is a scam. Racial insults have no status among discourse committed to truth. They do not attempt to establish, improve, or criticize any
proposition or object of inquiry. They do not even have enough truth value to be false, to represent a discarded alternative idea. Racial insults communicate only scorn or hatred
irrationally based on immutable characteristics of the target. Their goal can only be to diminish the victim or to accentuate the belonging of the speaker to a group outside of the
despised circle. They may relieve emotional tension within the speaker, but only at the greater cost of increasing tension within and among the audience.
If students are not allowed to have total and free discourse, then the learning process is going to
be stunted. This open market needs to happen to challenge ideas, create new ideas, and weed
out whatever untruths may lie in the school. The government does not have the right to discern
what is and what isnt truthful because it is a violation of our right to due process which means
that justice cannot be achieved then.
Contention Two:
Contention 2: Free discourse is key to democracy
Democracy is one of the key pillars on which the United States is situated upon, and allowing the
free flow of ideas allows for a culture of democracy to be fostered.
Free discourse in schools leads to a more democratic government
Byrne, J. Peter.[ Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399
These comments suggest a strength of the Court's broad view of first amendment protection for offensive speech that frontal assaults have failed to touch: because
The reason that we have this promotion of ideas by a general process is so that the ideals of
democracy and justice can permeate into all of society. These institutions are mechanisms for
changing social ills and making the society intern more democratic.
University policy shapes democratic ideals of the United States
Byrne, J. Peter. [Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399.
For the university to bar offensive ideas would give precedence to a commitment
beyond those to truth and to learning, a commitment to racial justice as a primary
goal. Pursuit of such a social goal may appropriately be embraced under the
university's third commitment-to democracy. Indeed, most universities openly pursue equal opportunity and diversity as
important goals. This democratic commitment encompasses the many important ways that the
university directly serves society, such as by training students for useful employments or by conducting applied research to solve
contemporary technical or economic problems. Among their contributions to democracy, universities have aided the integration of, first, European immigrants and, now, nonEuropean Americans into a shared culture and economy by facilitating their admission to the university and altering the curriculum or social context to meet their special needs. 1
0 5 Given that most universities are already committed to democracy, what is objectionable about banning racially offensive speech to further that goal?
This commitment to a more democratic nation has its roots deeply in the education of
Americans. Historical precedent has shown that these places are some of the first places
minorities and women can get more of their rights which intern leads to a social change. When
all people are treated equal both democracy and justice can be upheld.
Contention Three:
Contention 3: Free speech key to solving racism
The issue of racism is a growing problem in our modern era, however limiting the speech of
students at universities only does more harm than would an acceptance of all speech.
Acceptance of all speech is key for a diverse and more inclusive society
Gutmann, Amy, and Sigal BenPorath. [Professor of Literature, Culture, and International
Education Division at The University of Pennsylvania] Democratic education. John Wiley & Sons,
Ltd, 1987
to evaluate even their parents (along with other citizens) religious values (and other values that are not essential to democratic justice) can create an unnecessary rift between
the worldviews of parents and students (Tomasi 2001). Focusing democratic education on autonomy in the broadest sense of the term subjecting everything to critical scrutiny
on the basis of ones independent set of values is particularly problematic when students come from cultures that do not value personal autonomy (Galston 1991; Ben-Porath
This culture of acceptance and tolerance can only be created if the market for differing opinions
and language can be created. If we cute the flow of these ideas from the market then we can
never expect that the society will ever become more inclusive others.
Open discourse allows for a more rapid inclusion and development of the self
Gutmann, Amy, and Sigal BenPorath. [Professor of Literature, Culture, and International
Education Division at The University of Pennsylvania] Democratic education. John Wiley & Sons,
Ltd, 1987
Modern democracies are multicultural in the broadest sense of the term: just as their
histories, if accurately rendered, combine the contributions of many cultures, so too
do their citizens identify with many cultures (Gutmann 2003). Yet public schools in
many democracies have taught their domestic history and civics curricula as if their
society were monocultural. Many history curricula downplay, some even disparage,
cultural identities other than the dominant one within a society. Many public schools in the USA, for example,
once assigned American history texts that referred to Native Americans as savages, neglected the Spanish exploration of the New World, and were almost entirely devoid of
voices of African Americans and women (Stille 1998: 1520). School days commonly included Protestant prayers, readings from the King James version of the Bible, and Christian
hymns. All children, whatever their religion, were expected to participate. When they were exempted, upon their (or their parents) request, they were made to feel like outsiders
and dissenters to a publicly endorsed religion.
Having a culture of promotion of all ethnicities and cultural beliefs will eliminate the racism that
exists in our country. This give all people their due to fairness and equality which lead to justice.
Overall, allowing for open speech and discourse education can be furthered, democracy can be
promoted, and racism can be eliminated, and all of these lead to justice
Neg Case
Introduction:
Because not all speech is good speech, I negate the resolution, Resolved: Public colleges and
universities ought not restrict any Constitutionally protected free speech.
I value morality because of the term ought in the resolution. Regardless of what specific moral
theory one subscribes to, there is common agreement that racism is fundamentally immoral.
TJ Donahue writes in 2008: T. J. Donahue [Department of Political Science The Johns Hopkins
University] WHAT MAKES RACISM WRONG? Working Paper Version of 4 August 2008
http://ssrn.com/abstract=939000
One of the precepts of Western morality, and increasingly, of all moral codes, is that racism is
wrong. To commit a racist act, to support racist institutions, to express a racist attitude, or even
to have racist attitudes are, most of the worlds moral codes now agree, wrong. This means that
when one commits such acts or expresses or has these attitudes, one has violated a moral
obligation.
But what makes racism wrong? In virtue of what is being racist, or acting as a racist, a dereliction
of moral duty? Three answers loom large in the philosophical literature. The first, due to J. L. A.
Garcia, holds that racism is wrong because it manifests the vices of malevolence and injustice
(Garcia 1 The second answer, due to Lawrence Blum, holds that what makes racism wrong is that
it (a) violates moral norms of equal respect and (b) is integrally tied to race-based systems of
oppression.2 The third answer, inspired by the work of John Rawls, holds that racism is made by
wrong by its violation of such principles of justice as the principle of equal liberty or the
difference principle.3 Against these three views, this paper argues that what, above all, makes
racism wrong is simply and solely that it entails omitting treating every person as a bearer of
equal dignity. Such omissions are, as I shall try to show, wrong. I shall call omitting treating every
person as a bearer of equal dignity the chief wrong-maker of racism, since it is what, as I
argue, is most responsible for racisms being as wrong as it is.
Thus, my value criterion, or standard, is minimizing racism. Prefer my value criterion for two
additional reasons.
First, while there are conflicting accounts of what it means to be moral, we all have a
fundamental intuition that racism is wrong. In a world of moral uncertainty, we should default to
our core moral assumptions and base our actions off of those fundamental assumptions.
Second, racism undermines the basis of all moral theories. All moral theories assume some
degree of moral agency and equality, but racism undermines both agency and equality, make
racism the most important issue to discuss in terms of morality, especially in society where
racism is still prevalent today.
Contention One:
My thesis and sole contention is that public colleges and universities ought to restrict
Constitutionally protected racist speech.
Professor Hernndez-Truyol writes in 2014: Berta E. Hernndez-Truyol [Levin Mabie & Levin
Professor of Law, University of Florida Levin College of Law.], Globally SpeakingHonoring the
Victims' Stories: Matsuda's Human Rights Praxis, 112 Mich. L. Rev. First Impressions 99 (2014).
Available at: http://repository.law.umich.edu/mlr_fi/vol112/iss1/12
Matsudas proposal seems uncontroversial and even desirable (especially in light of the
historical realities of racial minorities disempowerment) because it simply asks that the
victims story be heard and be relevant to any analysis. Her measured approach requires
three elements to make speech actionable: the message must be (1) of racial inferiority; (2)
made against a historically oppressed group; and (3) persecutory, hateful, and
degrading. Because these elements are focused and limited, Matsudas approach
should address concerns about slippery slopes or opened floodgates. Indeed, these
elements serve to tie hate speech to the existing doctrinal requirements of threats,
incitement, or fighting words.
Nonetheless, the Supreme Courts rulings establish that hate speech is protected
speech, despite the documented harms it causes. Instead of an Equality track, the courts
have opted for a Libertarian track that requires all ideas to be in the marketplace in order for
everyone to have a voice. It is not for the government to identify who has good or bad ideas;
indeed, under the First Amendment there is no such thing as a false idea.12
Hate speech empirically is racist and causes immense harms to those it affects. It should be
recognized as similar in effect to fighting words which are not constitutionally protected.
Professor Hernndez-Truyol continues: Berta E. Hernndez-Truyol [Levin Mabie & Levin
Professor of Law, University of Florida Levin College of Law.], Globally SpeakingHonoring the
Victims' Stories: Matsuda's Human Rights Praxis, 112 Mich. L. Rev. First Impressions 99 (2014).
Available at: http://repository.law.umich.edu/mlr_fi/vol112/iss1/12
Whether any of these narratives, all of which can be categorized as hate speech stories, find
protection under free speech principles depends on where the speech occurs. The Supreme Court
of the United States has interpreted the First Amendments Free Speech Clause very broadly.
Such an interpretive move effectively deploys the idea of American exceptionalism. In the
United States, therefore, hate speech is not per se actionable unless it fits into an
established category of unprotected speech.8
Most of the rest of the world has a different view. Other countries are not so concerned
about setting limits to expression that consist of advocacy of national, racial or religious hatred
that constitute[] incitement to discrimination, hostility or violence.9 The world community
recognizes that hateful statements can be harmful. Indeed, there is a conscious effort
in Europe to reconcile free speech with other rights, especially in light of the culturally
diverse societies that comprise the region.
In Victims Story, Matsuda details the real harms that real people suffer because of hate speech
racial slurs and epithets or other harsh language that has no purpose other than to
injure and marginalize other people or groups.10 By depriving citizens of the peace,
stability, and security to which they are entitled in their daily lives, the United States
approach to hate speech becomes a psychic tax imposed on those least able to pay: