Tuesday, December 13, 2016

LD Jan/Feb 2017 - Free Speech on Campus - Introduction

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


Introduction

This is a potentially interesting topic for debate. But, I will at the outset express some concerns as an individual who is very much a defender of civil liberties and U.S. Constitutional rights for citizens living in the U.S. the right to free speech is without question one of the most important rights granted to Americans by law and indeed it should be protected in all countries though, sadly, it is not. In the U.S. Bill of Rights, prior to revision in the Senate, it stated: "The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed." I can confidently tell you, the U.S. Supreme Court has steadfastly refused to allow any law which infringes this most precious of freedoms. Of course that does not mean one may say anything at anytime. There are reasonable limits on the right to speech. For example, it is illegal to say or write anything which would endanger U.S. national security or it is illegal to say things which may incite mass panic or riots. I think it is notable these restrictions fall under the purview of upholding the common good despite the fact that precise language was removed in the First Amendment.  Justice Oliver Wendell Holmes remarked, "the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare" [Findlaw]

There are other restrictions and limits which become more nebulous and here is where there exists some room for debate.  For example, certain obscenities may be legally restricted.  Now I don't think any reasonable person would suggest that child pornography should not be banned but other forms of obscenities become more a matter of social and religious norms which tend to vary by locale. Also, there are restrictions on what is called offensive speech which includes a category of speech known as "fighting words" which are commonly known to "provoke a violent reaction" [Cohen v. California, 403 U.S. 15 (1971)]. It should be a given, not everything one chooses to express will be well received. The classic example, burning the U.S. flag as a form of protest is protected speech even though many people may be offended and it may provoke violent reactions in some. But the mere fact that people don't like what one says is not necessarily cause to limit one's right to say it. Personally, I find many forms of expression offensive, for example, language which demeans cultures, religions or lifestyles are usually offensive to me, but as an advocate for freedom of speech I would resist attempts to limit it entirely. Often the argument is made, that limiting speech is a kind of "slippery slope".  If the government is allowed to restrict speech, they will soon be limiting other categories of speech and eventually we will lose any ability to say anything against our government. However, I am not sure how well the slippery slope argument will play in this debate. The U.S. and indeed, the world currently seems to be going through significant cultural changes. Perhaps much of this change is driven by the increased awareness of the need to protect human rights or more specifically human dignity. Language and other forms of expression which can "otherize" individuals is dehumanizing and it can be argued dehumanization is a catalyst for genocide. In the U.S. there is increased awareness of LGBTQ rights, religious rights, indigenous rights, and minority rights of all types and a great deal of sensitivity to expressions which may be claimed to be demeaning, disrespectful or alienating to individuals who historically have been viewed as "the other". Thus we are faced with a dilemma of sorts deciding where to draw the line between free speech and obscenity; the open exchange of ideas and "fighting words", and forms of expression which violate the human dignity of others.

Definitions

colleges and universities
According to West's Encyclopedia of American Law (2008), we can apply the following definitions.
The term college is a general one that encompasses a wide range of higher-education institutions, including those that offer two- to four-year programs in the arts and sciences, technical and vocational schools, and junior and community colleges. The term university specifically describes an institution that provides graduate and professional education in addition to four-year post-secondary education. Despite these distinctions, the terms college and university are frequently used interchangeably in the United States.

public college and universities
Having defined colleges and universities we include the adjective "public". Public colleges and universities are those which receive funding from the state government. As a result of this funding, tuition costs for residents of the state tend to be lower since the assumption is made a resident (or her family) has already contributed to the funding through the payment of taxes in the resident state.

in the United States
It should not be necessary to define the United States. We can surmise from this qualification in the resolution the debate is limited to the various states and territories which are under the jurisdiction of the U.S. Constitution and in particular those places which have public colleges and universities.

ought
Ought is often defined as suggesting duty or obligation and is sometimes interpreted as imposing a moral imperative. Remarkably, this simple term can, by itself be debated as to what exactly it means as a normative term. For practical reasons, we should avoid such debate and simply make distinctions between 'what is' in the status quo and 'what "ought" to be' so as to correct some underlying harms.

ought not
This is is simply negating the ought. According to the terminology of the resolutions, public universities restrict free speech. We presume this to be a problem in the Affirmative world and so to set the world right public universities ought to stop restricting speech.

(to) restrict
Merriam Webster defines this as "to confine within bounds" and it is sufficient.  The resolution is not claiming universities are banning free speech.  They are confining speech or somehow restraining free speech.

constitutionally protected speech
This brings me back to West's Encyclopedia of American Law (2008) definition of free speech.
The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.

However, as I explained in the introductory remarks, speech is not "free" in that it is wholly unrestricted. In the strictest legal sense, constitutionally protected speech is any expression of beliefs and ideas which falls under the framework of judicial interpretation of the constitution which attempts to provide definition based upon a complete reading of the constitution and not just the first amendment.

West's Dictionary of American Law (2008):
Almost since the adoption of the Bill of Rights, however, the judiciary has struggled to define speech and expression and the extent to which freedom of speech should be protected. Some, like Justice Hugo I. black, have believed that freedom of speech is absolute. But most jurists, along with most U.S. citizens, agree with Justice Oliver Wendell Holmes Jr., who felt that the Constitution allows some restrictions on speech under certain circumstances. To illustrate this point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).


Analysis of the Resolution

The Public Forum September/October topic this year dealt with the legalities of school searches. Much of the justification for a relaxed standard of constitutional search and seizure law centered around a presumed overarching duty of public schools to provide an atmosphere conducive to education. No doubt, public universities are under a similar obligation and so universities may, within the sanction of the courts, choose to place limits on speech although not necessarily forbid speech. For example allowing free expression in a classroom setting could be disruptive to education or permitting certain kinds of discriminatory or hateful speech against certain groups may invoke undue fear, or reactions which harm targeted students from freely receiving the benefits of the education they paid for or earned at the university. One major difference with colleges and universities, is one typically sees a greater amount of cultural diversity from around the world on many public university campuses and these individuals may come from places or backgrounds in which the pain of discrimination or inhumane treatment are all too real. So in many ways, this debate can center around the clash of two fundamental human rights; the right to speak freely and the right to be safe. For example, one could easily understand how a crowd of marching students shouting anti-Islamic slogans could cause fear in Muslim students or how a professor's blog espousing anti-immigrant political views may be threatening to some groups of students. In short students should be about the business of learning in a safe environment.

On the affirmative side of this debate we will no doubt hear many advocates supporting the claims that free speech promotes education and understanding and it is a fundamental necessity for democracy. Contention and clash in and of itself has great educational value. After all, that more-or-less is the definition and purpose of debate.  The Affirmative view is countered by claims that free speech is permitted to achieve certain objectives. As I stated above, speech was originally conceived as the "right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances". When speech violates the public welfare, used to incite hatred or contempt of individuals, or when it invokes fear or loss of self-worth in listeners then, perhaps, limits are not only reasonable, but urged. Moreover, social media is a game changer for free speech. It has a multiplying effect. It amplifies a single voice in such a way it can be come a deafening roar which can be used to target individuals to the point of suicide as we all should be aware. In the status quo, there are already many forms of speech which fall outside of constitutionally protected boundaries and this confirms, perhaps, that not all speech has value for the common good. For this reason, some venues are saying, go ahead and express your views freely, but when you are in this place, please be respectful of the rights of others.



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Sources:

Findlaw (undated), Annotation 6 - First Amendment, accessed 12/8/2016 at; http://constitution.findlaw.com/amendment1/annotation06.html#sthash.auUUYsl5.dpuf


West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc., accessed 12/8/2016 at: http://legal-dictionary.thefreedictionary.com/Colleges+and+Universities

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc, accessed 12/8/2016 at: http://legal-dictionary.thefreedictionary.com/Protected+speech







3 comments:

  1. When will side-specific analysis be available?

    ReplyDelete
    Replies
    1. Soon. For sure, before the holiday weekend.

      Delete
    2. I hate to be a bother, but the holiday weekend has passed. Is there another inference as to when the analysis will be up?

      Delete

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