Wednesday, December 28, 2016

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

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


Negative Position

When one considers the history of so-called "free speech" in America, it may seem the courts, especially the Supreme Court of the United States (SCOTUS), is firmly on the Affirmative side of this resolution. Certainly, the Court is very much opposed to banning or restricting content simply because it may be offensive or in disagreement with the views of University administrators. But I think it is important to note, the resolution is not limited to a debate about banning content. The resolution focus is upon restriction of speech. Negative must acknowledge the SCOTUS claim, "The college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' " (Healy v. James, 408 U.S. 169 (1972)). Nevertheless, consider the following policy statement by Texas A & M University.

TAMU 2016:
University administrators are not powerless when dealing with free expression issues. Content-based restrictions on the exercise of free expression are judged by the courts to be unconstitutional. Nevertheless, these free expression rights are not absolute. Reasonable time, place, and manner restrictions apply to free speech and student protest issues when there is a compelling government interest to support their strategies to balance these student rights against the right of others to attend class, move about campus, and to avoid disruptions. Strategies include engaged advisement of recognized student groups, restrictions on sound amplification equipment, and the establishment of appropriate time windows for protests.

Another important case often cited in student and faculty free-speech issues in an educational context is Hazelwood v Kuhlmeier (1988) in which the court held that educators, “do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Thus, reasonable restrictions to speech may be applied in an effort to protect or enhance learning or academic pursuits. The problem for Affirmative in this case, arises from the fact, the case centered around a challenge made in a high-school environment and was specifically directed toward public primary and secondary schools. It is important to note, that the Court addressed the post-secondary context in a footnote, "(“We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.” (12)

A concern of SCOTUS and thus by extension, administrators, is the concept of public fora. the court defines three kinds of fora; the traditional open forum where free speech is typically done such as public parks, sidewalks, etc; the limited forum which are public areas which may be at times open to free speech (university facilities fall into this group) and the non-public forum in which free speech is usually not permitted. For more info see this article.

Unfortunately (or fortunately, depending on objectives) SCOTUS has given us little upon which to hang our hats with respect to this topic. The Negative world, that is, the status quo is a place where public colleges and universities place limits on free speech. These restrictions are mainly aimed at limiting various manifestations of hate-speech or offensive speech in captive locations such as classrooms where students cannot simply walk away to avoid listening to offensive speech. However, the Supreme Court has clearly ruled that any limits placed on content must pass strict scrutiny as serving the purposes of the state and it is clear the university is considered the 'marketplace of ideas'.

This analysis will focus on several major contentions. First I focus on the clash of civil of liberties and civil rights. Second, I will investigate hate-speech in particular and evaluate it's repressive tendencies.  Finally I will look at some of the philosophical theories of speech.


A Clash of Values

Civil liberties may be thought of as those freedoms which shall not be infringed without due process. These are the common liberties granted by the Bill of Rights and include the right to free speech. Civil rights are those laws which guarantee equal access and fairness. These generally restrict all forms of discrimination. While the fundamental civil rights have existed since the inception of the U.S. Constitution, recognition of civil rights came after the Civil War of the 1860s and the abolition of slavery. We can relate civil liberties with negative rights (freedom from...think of the value of autonomy) and civil liberties with positive rights (freedom to...think of the value of equality). One may assume that civil liberties and civil rights as components of our Constitutional law may coexist harmoniously and consistently. However, if there is a clash between civil rights and civil liberties, how do we resolve it?

Schmidt 2014:
A more recent episode in the still-unfolding history of the civil rights-civil liberties divide can be found in the debate over the regulation of hate speech and pornography, a debate fought out with particular urgency in the 1980s and 1990s and one that has periodically flared up since then. In an assessment of campus speech codes written in 1992, Thomas C. Grey started by identifying the assumption of a civil rights-civil liberties alliance that was a legacy of the 1960s, noting that “American liberals believe that both civil liberties and civil rights are harmonious aspects of a basic commitment to human rights.” The debate over hate speech had the effect of challenging this assumption, however, and “recently these two clusters of values have seemed increasingly to conflict …” [25]

As noted, Schmidt challenges the assertion of harmony with respect to hate-speech. So what it is about hate-speech that inserts this wedge between classes of law, especially in the context of the marketplace of ideas?

Delgado 2004:
Hate speech targets vulnerable minority groups by silencing, marginalizing, and causing some to underperform or drop out. It teaches all who hear or learn about it that equality and civil rights are of no great value, and demoralizes those who would wish to live in a more respectful society. This group will see nothing problematic with granting campuses the power to enact reasonable rules protecting vulnerable members of their communities in order to safeguard core values and institutional concerns emanating from the Thirteenth and Fourteenth amendments.[13]

Thus, Delgado explains how speech can marginalize minorities. As I read Delgado, the effect of such speech results in denying minorities equal access to education.

Schmidt 2014:
Delgado and other supporters of hate speech restrictions argued that the proper approach was to prioritize civil rights over civil liberties—an abstract principle of free expression must not prevent measures designed to protect oppressed groups. Then the cause of racial equality comes into conflict with personal liberty and autonomy, defenders of hate speech regulation argue, equality simply must triumph over liberty. Here, the civil rights-civil liberties distinction allows for a relatively clear, concise exercise in ranking the substantive value of conflicting rights.[25]

The prioritization of the provisions of the Thirteenth of Fourteenth amendments over the First amendment should not be seen as a nullification of the First amendment.  The Constitution was designed as a living document and it is reasonable the more recent changes are in place to correct the shortcomings of the earlier provisions, especially in recognition that U.S. society has evolved.


The Forum of the Marketplace

As I mentioned previously, the university is a marketplace for ideas but one must also consider it is not an open forum in the traditional sense.  The university exists as a place of employment and as an institution designed to further learning.  While, we may claim that learning is enhanced through the free exchange of ideas, we must allow that courses are directed to specific ends and so it may be within the purpose of the university as an institution to restrain or guide discourse toward the desired ends. Additionally, the forum in which professors must work and students must learn generally requires attendance and thus the students are a kind of captive audience.

Smith 2013:
Based on this analysis of case law, campuses can proscribe repeated hate speech by using the context driven workplace model with some modification. For example, if one considers students in the classroom to be a captive audience, as the courts have, because of graduation requirements and the like, then in-class or class related hate speech becomes easier to regulate because the courts have been very clear that when an audience is captive, the speaker enjoys less protection under the First Amendment. In Resident Advisory Board v. Rizzo[63] the court ruled that employees were a captive audience because they could not avoid being subjected to unseemly language without walking off the job. As we have seen, students fall into this same category. Even if a professor does not take attendance, the students are captive in the sense that absence would affect their ability score well on class assignments. R.A.V. v. City of St. Paul made clear that officials may restrict speech to protect members of a captive audience.

Smith looks to examples of case law involving workplace harassment and extents those precedents to the university setting.  For example, in the case Teresa Harris v. Forklift Systems, the Supreme Court recognized that Harris' employer's many statements with sexual overtones created a hostile and abusive environment.

Smith 2013:
The Harris ruling reinforces the framework for such regulations by pointing out that behavior that is "sufficiently severe or pervasive" to create a hostile work (read "learning") environment is in violation of Title VII.[66] If one were to apply the Harris formulation to the academic environment, one would have to prove that the words or behavior detracted from the student's performance, encouraged the student to leave the classroom or other academic environment, or kept them from completing the class or the degree. To meet this burden of proof, students could supply evidence of how they were hampered in their studies, how their grades had dropped, how their self-esteem had suffered, how they felt intimidated, and so forth, all of which were accepted as evidence in the Harris case to re-construct the context.


Hate-Speech

Freedom of speech is not absolute.  The courts recognize certain types of speech can be restricted, for example, treasonous speech, defamation, pornography, etc. Some of these classes of speech are harmful to the purposes of the state, and others are said to have no socially redeeming value. 

Haupt 2005:
The Court in R.A.V. [R.A.V. v St. Paul, Minnesota,(1992) had to examine the constitutionality of a St. Paul ordinance that banned cross burning. Justice Scalia, writing for the majority, explained that generally speaking, the government is prevented from proscribing speech based on its content. There are, however, limited areas in which such restrictions are permissible, areas that are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. These limited areas in which it is permissible to regulate speech content include obscenity or defamation, and can be regulated consistently with the First Amendment given their proscribable content. [319]

There emerges the concept that speech can be classified by its quality and speech regulation can be applied accordingly.

Brink 2001:
But not all content-specific regulations are thought to restrict fundamental liberties. First Amendment jurisprudence also distinguishes between low-value and high-value speech. The liberty to engage in low-value speech is not a fundamental liberty; content-specific regulation of low-value speech, as a result, need not satisfy strict scrutiny. By contrast, other forms of speech are high-value, and the liberty to engage in them is a fundamental liberty; as a result, content-specific regulation of high-value speech must satisfy strict scrutiny or some comparable standard. The Court formulated the distinction between low-value and high-value speech in Chaplinsky v. New Hampshire:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and the obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[129]

Brink looks to the philosophy of John Stuart Mill and the application of his famous 'Harm Principle'; "That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others." Mill was an advocate for free and open speech since, in his view, speech did not cause harm to others, but Mill had no knowledge of modern psychology.

Brink 2001:
We must determine not only whether hate speech is high-value or low-value speech but also whether hate speech regulations can satisfy the associated standard of review. Of course, if, as I have argued, hate speech is not high-value speech, then that makes its regulation considerably easier to justify. However, even if we did recognize hate speech as high-value speech, a good case could still be made for the permissibility of hate speech regulation. Mill thinks that even fundamental liberties can be restricted when their exercise would cause harm to others. As we have already noted, he is quite explicit that mere offensiveness does not constitute harm for purposes of the harm principle; rather, conduct must adversely affect important interests to count as harmful. I might be offended by your religious or sexual practices, but that does not show that your practices harm me (cf. OL: iv 14–16, 20–21). That seems right. But it would be a mistake to suppose that the effect of hate speech is mere offense.
Mere offense typically involves non-traumatic psychological disturbance that is both mild and ephemeral and does not ramify strongly to other psychological states or to behavior. But the effects of hate speech on targets are often traumatic.[143-144]

According to Brink, hate speech violates the Millian Harm Principle. Thus it is low-value speech which falls under a less restrictive standard of scrutiny. 

Brink 2001:
When calculating the harm hate speech causes, we must reckon not only these psychic harms but also the adverse effects on deliberative interests that we already considered in arguing that hate speech is not high-value speech. Hate speech expresses visceral attitudes and invites inarticulate reactions, and it undermines the culture of mutual respect necessary for effective expression and fair consideration of diverse points of view. This is a deliberative cost that all members of the community pay, but the victims of hate speech clearly bear the biggest share of this cost. Because of the importance of deliberative interests in Mill’s account of human happiness and in specifying fundamental interests and liberties, the adverse effects of hate speech on the deliberative interests of targets ought to be reckoned as harms.[146]

Many sources will confirm the detrimental effects of hate-speech upon individuals who are the targets of such discourse.

Haupt 2005:
In summarizing the arguments in favor of regulating racist speech, Friedrich Klubler emphasizes the conflict between equal protection and liberty. While racist speech advocates discrimination, the act of making choices based on personal bias is a part of self-determination; so too, is the contribution to the “social definition of others.” Hate speech, however, has the potential to inflict emotional pain and distress, intimidation, and fear. These resulting feelings may be dismissed as simply part of free expression and open discourse, but Klubler suggests that there are, in fact, good reasons to approach the issue in a more subtle and discerning way. The painful and intimidating effect of racial insults is likely to increase with repetition and is particularly strong for those who have previously been the victims of racially motivated persecution or violence. The effects of silencing the minority, thereby excluding it from public discourse, and the link to physical violence both underscore the necessity of imposing limits on racist speech in order to curb the articulation of racial hatred. There are, in sum, a number of good reasons to be concerned about the effects of hate speech, and a defensible argument for some kind of regulation in the area of hate speech emerges from the opinions voiced on this side of the debate. [309]


Defending Personal Values

Let us acknowledge the capacity for speech to inflict harm. We already see court support for the restriction of so-called "fighting words" which incite people to harmful acts.  Less recognized is the kinds of speech which can repress speech, which basically shuts-down the marketplace of ideas. Let's begin with negative effects of hate-speech on human dignity. Perhaps this one area where the First Amendment is in need of correction.

Ramirez 2015:
The effects of living in a society that is permeated with hate speech are well documented by social psychologists, and have been openly recognized by some judiciaries. In the 1990 Canadian Supreme Court case, R v. Keegstra, the court ruled against the authors of hate speech and in favor of the appellant, claiming “(t)he derision, hostility and abuse encouraged by hate propaganda … have a severely negative impact on the individual’s sense of self-worth and acceptance” (1990, CR697). There, the court recognized a link between hate speech and decrease in agential self-worth.
C.R. Lawrence presents evidence of this in his paper, ‘The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism’ (1987), where he reproaches American jurisprudence for failing to take contemporary developments in psychology into account. Stigmatizing actions such as hate speech, he writes, “harm the individual in two ways: They inflict psychological injury by assaulting a person’s self-respect and human dignity, and they brand the individual with a sign that signals her inferior status and designates her as an outcast” (1987, 351).[4-5]

In addition to the harmful effect of hate-speech on human dignity, Ramirez presents a lengthy discussion asserting how individuals are deprived of autonomy.

Ramirez 2015:
On the one hand, personal autonomy is the capacity of agents to act on reasons and motives that are their own. Considerations for this kind of freedom permeate various commitments in liberal democracies – commitments to ban forced servitude, for example, or the writ of habeas corpus. Through each of those, the state recognizes that depriving an individual of her capacity to act on her own reasons amounts to doing her wrong, and that this should be avoided. Hate speech deprives agents of their capacity to act autonomously by violently modifying their self perception. Thus, if a state is committed to individual liberty in this first sense, robust measures against this should be implemented. 

Thus the Negative side of this debate can claim it preserves and protects human dignity and autonomy; important human values.


Speech Acts

It is obvious that speech has a descriptive quality. For example, to claim the sky is blue, is using to speech to describe a reality. However, contemporary research studies speech as an act with a function, or a serious of functions which invoke acts. Therefore speech not only describes reality it can describe the speaker's action and intentions and invoke a response in the listener. While the topic is interesting and potentially complex is a competitive debate scenario, we can isolate particular points of view with respect to the resolution. Simpson presents the views of Mary Kate McGowen, Professor of Philosophy and Women's Studies at Wellesley College.

Simpson 2013:
If our question is simply "can speech oppress people?", then, so one might think, we do not need any clever philosophical machinery to formulate an answer. Speech can be used to insult, harass, threaten, bully, badger, demean, and humiliate people. If oppression is simply a matter of a person being treated particularly poorly, then of course speech can be used to oppress, since it can be used in any of these ways to treat people very poorly. So this cannot be what McGowan is setting out to show. A better understanding of her purpose is that she is offering us an account of how acts of speech – casual sexist remarks being her main reference case – can be, and indeed are, one of the main, proximate, causal operators through which the oppression of women is effected. Her aim is not just to show how verbal acts (i) make women worse off, or (ii) harm women, or (iii) confound women‟s preferences. Rather, her aim is to show how verbal acts might be centrally implicated in the kind of systemic harms and pervasive indignities that we advert to when we say that women are, in societies like ours, in a very general sense, oppressed.[6-7]

Even more to the point, is the effect certain kinds of speech can have on suppressing the responsive speech acts of the receiver of the message.

Green 2015:
Beyond such hypothetical cases, it has been argued that patterns of social inequality can manifest themselves as disabling certain groups from the ability to perform speech acts. Building on and refining McKinnon's (1993) claim that pornography silences women, Langton (1993), and Hornsby and Langton (1998) argue that the industry and consumption of pornography deprive women of the ability to perform the speech act of refusing sexual advances. Refusing is a speech act, but if large enough numbers of men deny uptake (with such thoughts as, “By ‘no’ she really means ‘yes’,” etc.) then, these authors argue, women's attempts to refuse sexual advances will be characteristically inert with respect to the speech act of refusal. Women will still be able to attempt to refuse sexual advances, and can still try to prevent them by physical means, but a crucial illocutionary form of protection will be closed to them. So too, apartheid, Jim Crow, and even patterns of discrimination of which the perpetrators are not consciously aware, can deprive racial, religious, and ethnic minority groups of the ability to perform speech-act types requiring uptake. These phenomena are generally referred to as illocutionary silencing.[sect.9]

So what does this mean? We have shown in all of the preceding discussion that our First Amendment is out of step with societal norms and what we now know about effects of language as instruments of oppression. Allowing unrestrained speech in university settings can be detrimental to the purpose of education. Hate-speech in particular has been shown to suppress speech and thus defeats the idea that university free speech is the marketplace of ideas.

Summary of LD Values

Since I know you will be asking, I will close this analysis with a discussion of what kinds of Lincoln Douglas values can be upheld. A careful reading of this analysis will reveal autonomy, equality and human dignity arising from limiting harms to individuals.  In addition, one may consider justice; the classic formulation of giving each her due, through enabling equal access to education or opportunities. I would also suggest that John Rawls' conception of justice as fairness can be effectively debated. In dealing with Rawls' liberty principle, the argument can be made that permitting hate-speech silences victims and thus denies basic liberties. There are no doubt other values and criterion which can be applied to this resolution but this can serve to get you thinking.

Good luck.


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


Sources:

Brink, DO (2001), Millian Principles, Freedom of Expression, and Hate Speech, Legal Theory, 7, 2001. Accessed 12/10/2015 at: http://davidobrink.com/sites/default/files/publications/MillianPrinciplesFreedomExpressionHateSpeech.pdf

Delgado, R. (2004), About Your Masthead: A Preliminary Inquiry into the Compatibility of Civil Rights and Civil Liberties, Harvard Civil Rights-Civil Liberties Law Review, Vol. 39, 2004. Accessed 12/10/2016 at: http://www.law.harvard.edu/students/orgs/crcl/vol39_1/delgado.pdf

Green, M (2015), "Speech Acts", The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/sum2015/entries/speech-acts/>. Accessed 12/10/2016.

Haupt, CE (2005), Regulating hate speech: Damned if you do, damned if you don't: Lessons learned from comparing the German and U.S. approaches, Boston University International Law Journal, Vol 23, 2005. Accessed 12/10/2016 at: http://www.bu.edu/law/journals-archive/international/volume23n2/documents/299-336.pdf

Ramirez, L (2015), The Autonomy Case for Regulating Hate Speech, The Brian M.Keenan Prize, 2015
http://www.keenanprize.com/wp/wp-content/uploads/2015/11/TheAutonomyCaseforRegulatingHateSpeech.pdf

Schmidt CW (2014), The Civil Rights-Civil Liberties Divide, Chicago-Kent College of Law, 2014. Accessed 12/10/2016 at: http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3365&context=fac_schol

Simpson, RM (2013), Un-ringing the bell: McGowan on oppressive speech and the asymmetric pliability of conversations, Australasian Journal of Philosophy in 2013. Accessed 12/12/2016 at: http://profiles.arts.monash.edu.au/robert-simpson/files/2012/07/unringing-the-bell.pdf

Smith CR (2013), Circumventing the "True Threat" Standard in Campus Hate Speech Codes, The Center For First Amendment Studies, California State University, Long Beach, 2010-2013. Accessed 12/10/2016 at: http://www.firstamendmentstudies.org/wp/hate_speech.html

TAMU (2016), Free Speech and the Right to Associate: Legal Issues in the Student/University Relationship, Texas A & M University, Provost; August 2016. accessed 12/10/2016 at: http://provost.tamu.edu/essentials/pdfs/FreeSpeechCORRECTED.pdf

3 comments:

  1. Would education work as a value? The idea being that because colleges and university are institutions with the purpose of supping can upholding education the debate ought to uphold the same value.

    Thanks for the article, very helpful :)

    ReplyDelete
    Replies
    1. I suppose both sides could run education as a value. Aff can claim more speech promotes education, Neg can claim restricting some kinds of speech increases access to education, for example.

      Delete
  2. can equality and consociationalism be used as value and criterion?

    ReplyDelete

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