Thursday, December 29, 2016

LD Jan/Feb 2017 - Free Speech on Campus - Aff Position

Resolved: Public colleges and universities in the United States ought not restrict any constitutionally protected speech.


Affirmative Position

We live in a world where the cherished right of freedom of speech has been widely sanctioned across the United States on public college and university campuses. This has happened a mere 50 years after the epic student-led protests at the University of California Berkeley in the mid-1960s which gave rise to the so-called Free Speech Movement (FSM). These protests arose in reaction to university bans against political advocacy on campus. It can be said that the movement launched an age of political activism by students and the anti-VietNam War movement which impacted the views of a generation of Americans even if some claim it was mainly a left-wing fringe group. The question we can rightly ask ourselves, what role did freedom of speech play in shaping public opinion and if it did affect public opinion, was the outcome beneficial to U.S. society? This analysis will examine a key justification for constitutionally protected speech as a mechanism for finding truth or at least for uncovering error as well as serving as means to check the government.

Caplan 2015:
In a famous 1927 Supreme Court opinion, Brandeis wrote, “Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.” Liberty is the secret of happiness, Brandeis wrote. Courage is the secret of liberty. Freedom of thought and speech are the means to political truth. Without free speech and free assembly, it’s impossible for this democracy to thrive, perhaps even survive. With them, discussion protects against “the dissemination of noxious doctrine” so “public discussion is a political duty.” Free speech, then, is “a fundamental principle of the American government.”

Today we see a different situation which may be shocking to those FSM leaders who broke down the barriers to free and open speech on campus. Perhaps speech has led us to the realization that subgroups within our society were not being heard. Perhaps the mass of voiced opinions has become an incomprehensible noise drowning out or silencing the vulnerable. Perhaps our unfettered dialog has opened the eyes of society to such an extent we came to realize that some groups were claiming harms from our freedom of expression.  Indeed, a principle argument for the Negative side of the resolution focuses upon the harms inflicted by some expressions which on-face seem to only have the purpose of oppressing or marginalizing individuals and silencing their voices. These are the expressions which are being restrained on campuses often with full agreement by the students themselves.

Sheill 2014:
Although it has been argued that broad hate speech regulations have won the culture war, they have—at least for now—lost the legal war: broad regulations of faculty or student speech have been struck down in at least fourteen cases in states including Michigan, Wisconsin, Virginia, New Hampshire, California, Pennsylvania (, Texas, and the Virgin Islands. However, most universities continue to have policies that violate or threaten free speech guarantees, many universities punish or threaten to punish protected speech, and all wonder how best to deal with the emerging cyber–hate speech issue given conflicting lower court rulings.[2]



The Preeminent Liberty

There is in the minds of many scholars and presumably the Supreme Court of the United States, the idea that freedom of speech is the preeminent liberty. The right to freedom of speech is one of the first things one reads in the U.S Constitution and was explicitly aimed toward the right to "petition the Government for redress of grievances". The founders understood the ravishes of tyranny and designed a government structure with built-in checks and balances and provided that even when the government fails to check itself, the people, through the right to assemble and freedom of expression could check the government.

Downs 2001:
These reflections show that the constitutional principle of checks and balances can be as important as the First Amendment in fostering a climate conducive to free speech and civil liberty. The complementary principles embedded in Federalists 10 and 51 get to the heart of the matter. Both essays deal with the problems of tyranny of dominant or majority factions violating norms of justice and the rights of minorities or dissenters. James Madison presents what we may call the societal remedy to factional tyranny in Federalist 10: expand the geographic scope of the polity so that a large multitude of groups renders control by a dominant faction less likely. In other words, promote pluralism. Federalist 51 turns to controlling the government itself through the system of checks and balances. These remedies are “negative,” in the sense that pluralism and checks and balances are designed to simply facilitate opposition groups who will negatively check or limit the power of other groups; but they are also “positive” in the sense that it is hoped that notions of public justice and respect for rights will emerge out of the clash of interests represented in society and the government. [6-7]

The concept of checks and balances working through the gateway right of freedom of expression protects our remaining liberties. Federalist 10 is a key. Only through the expression of many voices; many points-of-view; a plurality of opinions, are we able to hold dominate factions in check. Moreover, we can claim freedom of expression is a gateway to the essential tenets of democracy.

Emerson 1980:
I have attempted to group the traditional values underlying the system of freedom of expression into four categories. Over the years, we have come to view freedom of expression as essential to: (1) individual self-fulfillment; (2) the advance of knowledge and the discovery of truth; (3) participation in decisionmaking by all members of society; and (4) maintenance of the proper balance between stability and change.
These values must be considered not in isolation, but as an integrated set. Each is necessary, but not in itself sufficient, for the four of them are interdependent. Thus, a system designed to serve only the interest in orderly change could not succeed in the long run; in a democratic society, such change can only be effected through active participation by the polity in decisionmaking. Furthermore, such participation would not be possible without a systemic commitment to the advance of knowledge or the discovery of truth.


The Liberating Power Of Speech

Advocates for freedom of speech believe that truth has a better chance to emerge through the clash of opposing views and so, even those points of view that some may find offensive or contentious have purpose in evoking contrary points. The renown political philosopher, John Stuart Mill was an ardent defender of unfettered speech.

Overgaauw 2009:
The English philosopher John Stuart Mill addressed an important paradox relating to the freedom of speech. Mill claimed that in order to be right one should have the possibility to be wrong, and that therefore liberty is essential to the investigation and finding of truth. He states in his 1859-classic On Liberty:
“The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

For Mill, the necessity of opposing views is absolutely critical to the process of discovery of truth. In fact, so critical, that even in the face of no opposition one should essentially debate oneself.

Ten Cate 2013:
Mill argues that true knowledge can only be acquired by gaining a full understanding of both sides of the argument, because "[h]e who knows only his own side of the case, knows little of that." Merely listening to contrary viewpoints is not enough; they must be put forward as persuasively as possible so that the listener can place himself "in the mental position of those who think differently." Learning about the other side is so important for individual development that, if no real opponents can be found, a person should imagine them.[7]


And SCOTUS Concurs

This debate focuses upon constitutionally protected speech, which of course implies reasonable constraints do exist. However, apart from several well-defined exceptions, SCOTUS has upheld the sanctity of all forms of expression, including those forms viewed as offensive, controversial, contrary, etc. and certainly in the context of this resolution, that liberty extends to post-secondary venues.

Strecker, et al 2016:
As a general rule, there is no right to not be offended. Controversial speech and robust debate are expected and valued on college campuses and in our society. Moreover, the right to engage in such expression is a highly valued and protected right under our laws. As the U.S. Supreme Court stated in 1989 in Texas v. Johnson: “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.” Indeed, the courts point out that offensive speech and unpopular viewpoints are what need legal protection the most, because that is the type of expression people are most likely to ask the government to shut down or that the government itself might want to shut down. Free speech protections are in place under the law for good reason. If the government started shutting down speech that is offensive to some, it would end up shutting down all speech, because virtually everything can be offensive to someone.

Through the years, the court has set aside a number of clear and very well-defined exceptions which can legally be used to sanction speech.

Caplan 2015:
The Supreme Court has explicitly identified five categories of speech that the First Amendment doesn’t cover: lewd, obscene, profane, and libelous expressions, plus face-to-face insults that trigger a violent response, known as “fighting words.” Ronald K. L. Collins of the University of Washington has counted “at least 43 other additional types of unprotected expression,” ranging from blackmail and bribery to perjury and harassment in the workplace; from plagiarism and child pornography to some kinds of panhandling; from telemarketing to lying to government officials. And free speech in public schools, courtrooms, prisons, the military, and other public institutions may be limited—from the government’s viewpoint, to help them function effectively.

With the enumeration of these exceptions, we establish the limits of constitutionally protected speech. It is simply all forms of expression which DO NOT meet the exception classes listed above.


Harms in the Status Quo?

Given this background covering the philosophical foundation of unrestrained expression and the unwavering blanket of protection cast over the First amendment by the American Judicial System, how is it that public colleges and universities which are supposed to be the cradle of higher-learning and critical thought are finding it necessary to limit speech well-beyond the heretofore recognized boundaries of constitutional protection? Perhaps much of the answer lies in the circumstances which necessitated the ratification of the Thirteenth and Fourteenth amendments. Equality of opportunity emerged as a core component of American jurisprudence as Americans slowly opened their eyes to hundreds of years of oppression and denial of rights to entire groups of citizens. Of course we can claim, that freedom of expression was the catalyst which prompted the revelation of truth. With the eventual emergence of the civil rights movement, the dismantling of Jim Crow and implementation of Affirmative Action, public universities began to diversify. Indeed, in many cases the public universities embraced Affirmative Action finding educational value in the diversity of opinions and views. But with this diversity of voices comes opinions and expressions which some may find offensive. Nevertheless, the courts remained firm in their commitment to speech.

Sheill 2014:
The US Supreme Court has ruled in a long line of cases that government cannot punish speech merely for being offensive. This restriction on government power applies whether the expression was offensive to an individual or a majority. The protected status of merely offensive speech has been repeatedly stated in faculty and student speech cases. For example, in a faculty case the Ninth Circuit Court of Appeals asserted, “It is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive.” In a student case, the Third Circuit Court of Appeals observed, “The Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.”[5] 

What is the anecdote for offensive speech? Mill gave us the answer: contrary points of view and as stated by Ten Cate (2013), "if no real opponents can be found, a person should imagine them". Thus the response to offensive speech is more speech, not repression of speech.

Downs 2001:
In a world in which politics and power inescapably influence deliberations over policy and the meaning and application of principles, those who make policy must guard against being captured by dominant viewpoints that undermine honest consideration of competing claims. Countervailing power and checks and balances are especially important to universities for at least two reasons. First, as John Stuart Mill and Jonathan Rauch have shown, an open marketplace or forum of criticism and debate (i.e., a forum with a clash of countervailing ideas) is a necessary (if not sufficient) element of the process of determining the truth. Truth propositions must be exposed to rigorous criticism in order to claim validity. Furthermore, as Mill has famously written, unless even absolute or incontestable truths are strongly challenged, individuals will not be able to grasp them with sufficient depth and meaning. This logic is especially relevant to a university, for, as Rauch remarks, universities’“moral charter is first and foremost to advance human knowledge.” Consequently, “If governments stifle criticism, then they impoverish their citizenry; if universities do so, then they have no reason to exist.” [4]

More and more, offensive speech aimed at minorities groups, or individuals were met with complaints to school administrators who attempted to find legal ways to categorize offensive, racial, or sexist expressions as falling outside the bounds of constitutional protection.

Silverglate & Gewolb 2002:
College administrators have used every trick in the book to try to limit student speech: Content-based speech codes were the weapon of choice against "offensive" speech on campuses in the early 1980s, but universities were forced to abandon these codes after courts uniformly struck them down. Since then, administrators have used racial and sexual harassment rules to create de facto speech codes. Though these rules have had a chilling effect on campus discourse, recent court opinions finding it unconstitutional to classify as "harassment" speech that is merely offensive (but not physically threatening), reduce the utility of such rules in suppressing speech.[1]

In response to judicial actions, governments and administrators began to seek relief in a set of codes classified as "hate-speech" but early challenges made it clear the government was on shaky legal footing.

Caplan 2015:
In 1992, the Court struck down the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, which made it a misdemeanor to put on public or private property a symbol like “a burning cross or Nazi swastika” that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Known as a hate-speech law, and intended to punish and thus discourage abhorrent speech, it was similar to ones passed by the federal government and more than half the states. In this case, a group of teenagers who had burned a cross in the yard of a black family had been prosecuted under the ordinance. The law considered the cross burning expressive conduct and therefore speech. Justice Antonin Scalia explained that the St. Paul ordinance was unconstitutional because it wasn’t neutral: it punished hate speech about race and color, for example, but permitted by omission “abusive invective” about “political affiliation, union membership, or homosexuality.” His opinion closed, “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

Again, in the face of perceived harm to minorities, the court maintained its stance that content-based constraints on speech were unconstitutional. Administrators also tried to ban speech which was perceived as threatening, but courts continued to defend freedom of expression.

Sheill 2014:
The US Supreme Court has ruled that a true threat exists only where “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The relevant state law defines a true threat as “a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech.” Whether or not an expression is a true threat depends on the totality of facts in that case, such as its context, the intent of the speaker, reaction of the recipient, the intended target, and its being unconditional and unequivocal.[7]

Meanwhile, other nations, in recognition of the Universal Declaration of Human Rights and its emphasis on human dignity, began adopting hate-speech laws claiming such forms of expression as assaults against the dignity of humans and thus worthy of sanction. In response, and often with approval of a plurality of the student body, universities began to frame hate-speech codes in the context of illegal harassment.

Simpson 2012:
Several authors in the hate speech literature invoke the idea of dignity in their work. What is often missing is an explanation of why dignity is a specially pertinent moral concept in an inquiry into the grounds for restricting hate speech. If we are trying to characterise the harms of hate speech, why not focus on the targets‟ welfare, and ask whether hate speech corrodes it? Why not consider the targets rights, and ask whether hate speech violates them? Perhaps there are pragmatic reasons why some theorists avoid these approaches. If the adverse effects of hate speech, when conceived in welfarist or deontological terms, do not seem severe enough to underwrite an argument for restricting hate speech, committed opponents of hate speech may be prompted to retreat to some alternative moral terminology. [7]

With the perception of harms to minorities groups such as non-whites, immigrants, non-Christians, LGBTQ, etc. universities have introduced sweeping speech-limiting codes which have chilled the free expression of ideas in what has been traditionally considered the marketplace of ideas.  The Negative side of this resolution will likely claim, these codes address shortcomings in the current law, and fulfill the spirit of the Fourteenth amendment granting equal access and eliminating discrimination. Thus, the Negative side of this debate will be declaring solvency for a number of harms while ignoring the harms committed against a gateway right.

Affirmative Solvency 

Many universities have erected boundaries around the freedom of expression on campus and as one author I read, stated, we have a situation in which the public forum has more freedom of expression than many institutions of higher learning. We have already presented a case for the necessity of free speech as a mechanism for truth-finding, for restraining government abuse, and for upholding the core principles of democratic society.  All of these benefits are at risk when speech is sanctioned. This is the disadvantage, the major harm which prompts the resolution to be debated. When the Negative claims some forms of speech invoke silence from minorities, how is it proper to increase the silence by shutting down the opposition view?  The anecdote for silence is speech. Thus I affirm.


The Affirmative Values

Now I will briefly discuss the inevitable question of what value should one defend on the Affirmative side? The easy answer seems to be the value of democracy upheld by the protection of civil liberties. The defense of democracy solves human dignity, protects human rights, promotes justice and defends liberty.  Thus we have a variety of strong values which can be derived from the defense of constitutionally protected speech. You should have no problem linking good values to your case.


Good luck!



For more on this topic or other topics of interest, click the Lincoln Douglas tab at the top of this page.



Sources:

Caplan, L (2015), The Embattled First Amendment, The American Scholar, Mar 4, 2015. Accessed 12/15/2016 at: https://theamericanscholar.org/the-embattled-first-amendment/#

Downs DA (2001), The Politics of Civil Liberty on Campus, Policy Research Institute Report, Vol 14 No. 7, October 2001. Accessed 12/15/2016 at: http://www.wpri.org/WPRI-Files/Special-Reports/Reports-Documents/Vol14no7.pdf

Emerson TI, First Amendment Doctrine and the Burger Court, 68 Cal. L. Rev. 422 (1980).
Accessed 12/15/2016 at: http://scholarship.law.berkeley.edu/californialawreview/vol68/iss3/1

Lacewwing M (undated), Mill on freedom of thought and expression, Routledge, Taylor & Francis Group. Accessed 12/15/2016 at: http://cw.routledge.com/textbooks/alevelphilosophy/data/A2/Mill/MillTruth.pdf

Overgaauw, D (2009), The Pardoxes of Liberty: The freedom of sppech (re-)considered, Amerstam Law Forum, Vol 2, No 1 (2009). Accessed 12/15/2016 at: http://amsterdamlawforum.org/article/view/104/186

Sheill, TC (2014), The Case of the Student’s Racist Facebook Message, AAUP Journal of Academic Freedom, Vol 5, 2014. Accessed 12/12/2016 at: https://www.aaup.org/sites/default/files/Shiell.pdf

Silverglate HA & Gewolb J (2002), Muzzling free speech, The National Law Journal, Oct 1, 2002. Accessed: 12/15/2016 at: https://static1.squarespace.com/static/558c16e9e4b00e687752a5c9/t/55b13689e4b080c8f9280e85/1437677193218/NLJ+muzzling+free+speech+10-1-02.pdf

Simpson, RM (2012), Dignity, harm, and hate speech, Law and Philosophy, July 2012. Accessed 12/15/2016 at: http://profiles.arts.monash.edu.au/robert-simpson/files/2012/07/dignity-harm-hate-speech.pdf

Strecker CG, Paukstelis PJ, Redeker MA, Large RC, et al (2016), Free speech on campus, Office of General Council, Legal Briefings, Oct 2016. Accessed 12/15/2016 at: https://www.k-state.edu/generalcounsel/newsletter/pdfs/2016-10%20OGC%20Newsletter.pdf

Ten Cate, IM. (2010) "Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses," Yale Journal of Law & the Humanities: Vol. 22: Iss. 1, Article 2.
Acessed 12/15/2016 at: http://digitalcommons.law.yale.edu/yjlh/vol22/iss1/2

12 comments:

  1. Hi! I'm currently working on my AFF case, however, I can't find a definition online for constitutionally protected speeches. Do you have any ideas? Also do you have any v and vc suggestions?

    ReplyDelete
    Replies
    1. Every question you asked is already answered in this post. :)

      Delete
  2. Just saying this blog is the best. One question though do you think it is viable to have a Neg Counterplan that says we ought to prohibit holocaust denial advertisement?

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    1. It probably would have been relevant to ask this under the Neg Position. Traditional NSDA does not permit counterplans, but I acknowledge many tournament do allow them. Counterplans need to be net-beneficial (NB) and mutually exclusive (MX). I am not sure the MX test will hold up in the world of the perm. There are several ways to perm this DO BOTH or DO AFF(PLAN) And setup a commission to address holocaust denial issues or some similar perm. Also it may be possible to achieve the NB on the Aff side simply by using speech to educate, deniers. However, I can't say for certain without seeing the text of the CP.

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    2. The Neg will offer a counterplan to show how I will achieve my side of the resolution.
      Counterplan text: Public colleges and universities in the United States ought to promote healthier environments by prohibiting holocaust denial advertisement.

      Definition of advertisement- a notice or announcement in a public medium promoting a product, service, or an idea.
      To prove something as advertising holocaust denial, it must follow a four pillar test.
      If the item under examination is willingly and openly directed to convince others that expand immediate people to question the holocaust.
      If the item isn’t used in response to provocation.
      If the item is used extensively or repeatedly.
      If the item significantly hampers and affects one’s knowledge and education of the holocaust to the point in which one denies the holocaust occurred.
      Any holocaust denial that passes these 4 pillars cannot receive the right to freedom of speech and can be restricted.

      Delete
  3. In the Caplan 2015 card it said "Ronald K. L. Collins of the University of Washington has counted 'at least 43 other additional types of unprotected expression'”

    I'm trying to find his source for that, do you know where he got that from?

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    Replies
    1. Sorry, I do not know. Collins is a prolific author and I would not be surprised if the evidence needs to be compiled from several sources.

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    2. That's alright. I was going to try to use it for my definition of constitutionally protected speech (by defining it based on what it's not instead of what it is) but I found something else that'll work just as well.

      While I'm talking to you, I have my aff contentions done, but I'm having trouble picking a value and criteria that fit my case and I was wondering if you had any ideas. So far I've got:

      C1: College campuses impact politics as a whole, so protection of free speech ought to be a priority.

      C2: Speech codes are ineffective and difficult to enforce.

      C3: With Trump's election, people need to know how to handle controversial opinions

      C4: The solution is to promote more speech rather than limit it.

      I was thinking a value of democracy or maybe education, and a criterion of epistemic humility, but I'm having a hard time tying it into my case. Any suggestions would be really helpful. Thanks!

      Delete
  4. Replies
    1. Okay, so LD Debate 101: Lincoln-Douglas Debate is centered around values, which basically are general principles, philosophies or ideals that we think are important. All arguments must show that they benefit that value, or else they don't matter. The side that best upholds your value is the side that ought to win.

      Some links that might help:
      http://everydaydebate.blogspot.com/2013/09/values-in-lincoln-douglas-debate.html
      http://debate-central.ncpa.org/common-ld-values/
      http://debate-central.ncpa.org/understanding-the-value-criterion/
      http://www.angelfire.com/weird/debateworld/Values.html

      If that doesn't help, just ask your coach to explain it to you.

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  5. What is your advice during a round where your opponent clearly misleads the interpretation of a source, you ask for the source, your opponent produces it to you, you read the source and it is a clear misrepresentation of the source....how do you effectively present that misrepresentation to your judge during rebuttal? Thank you for any suggestions.

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    Replies
    1. Misleads how? Depending on what exactly they do, then you can charge them with falsification of evidence (which, again depending on what exactly they do, could cause them to lose the round) or you could just point out how unreliable the source it is and use it to nullify their argument. It's hard to answer this because your question is so vague.

      Delete

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