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

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

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.



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



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







Thursday, December 8, 2016

PF Jan 2017 - Increase Military Spending - Con Position

Resolved: In order to better respond to international conflicts, the United States should significantly increase its military spending.


Con Position

The Con position will argue against the call to significantly increase military spending. In fact, Con may be able to argue that military spending can be cut. Bear in mind, there is a lot of ground between significantly increase and cut all spending.  Con can "slightly" increase spending, keep spending the same, slightly cut spending or slash it to the bone. In addition, Con is greatly helped when reporters like those at the Washington Post print articles about how the Pentagon has a penchant for massive bureaucratic waste to the tune of $125 billion . The news is writing your case for you. Moreover, the Con will be taking a serious look at the role of the United States in world affairs. For example, we have been shoring up European as well Far Eastern security since the end of Second World War.  The nations under our umbrella of protection are fully-capable of defending themselves or at least able to bear a greater percentage of the cost to uphold their own security. Additionally, the nature of how conflicts are executed have changed significantly. Technology has greatly reduced the need for massive, invasions and hundreds of thousands of troops occupying ground.  Satellites, drones, and smart, precision weapons are game changers. The days of the massive, lumbering, troop movements is replaced with small, precision and rapid-response interdiction teams striking targets and moving on. Actually, there should be no need to discuss the pro and cons of the effectiveness of rapid-response interdiction teams or drone warfare. These are simply justifications for reducing spending and there are other justifications. A major focus of the recent U.S. presidential campaigns has been the need to upgrade the infrastructure and this will cost billions of dollars.  Airports and shipping ports need massive upgrades, highways and bridges need replaced, energy and communications systems need to be constructed.  All of this work will help support growth and advancements in a wide range of endeavors, including better national defense. Should we mention schools? Many school systems are in terrible condition and our institutions of higher learning are too expensive and driving students deeply into debt. Perhaps some federal money can be applied to education resources. For sure, running the country is expensive and there is only so much revenue to go around. Do we really need to be the world's police force? Do we really need to stick our noses into every conflict which erupts between protagonists?  Perhaps it is time to rethink our position and start to roll-back some of our imperialistic tendencies. Let us begin by resisting the call to significantly increase military spending.


Limited Funds

One major contention for the argument to reduce military spending can be visualized as a pie-chart. The pie is a fixed size determined by government revenues most of which are collected by taxes. The cost of maintaining the government is enormous and by far one of the biggest slices is being handed over to the Defense Department for its many spending needs and we can argue about how much of that "slice" goes into wasteful endeavors.

Beattie (2015):
Capital is finite, and capital going into one spending category means that there is less money for another. This fact gets more interesting when we consider that any government spending exceeding revenues results in a deficit that is added to the national debt. The ballooning national debt has an economic impact on everyone, and military spending is one of many contributing factors. As the national debt grows, the interest expense of the debt grows and the cost of borrowing subtly increases due to the risk that increased debt represents. In theory, the increased debt will also drag on economic growth and eventually a driver towards higher taxes.

The sizable chunk of the pie used for defense leaves little for other purposes, such as the much discussed need to increase infrastructure spending. When there is no more "pie" the government borrows which increases the federal deficit which also requires slice of the fiscal "pie" to pay-down on the debt. Something has to give since debt itself is a security risk.

Newbie (2016):
The United States defense budget amounts to roughly $600 billion a year, just over half of all federal discretionary spending. Meanwhile, the U.S. national debt has ballooned to roughly $19 trillion. In fact, former chairman of the Joint Chiefs of Staff Admiral Michael Mullen famously remarked that “The most significant threat to our national security is our debt.”

To regain control of the federal budget and begin investing in much needed infrastructure, education, alternative energy, and technology needed to ensure future viability in an increasingly competitive world. The U.S. must finds to limit military spending without sacrificing our national defense. According to a report in CNSNews, Government workers outnumber manufacturing workers by nearly 2 to 1. All of those government jobs are supported by taxes. The defense budget supports a vast number of public sector employees. One way to reduce spending and actually increase private employment is to cut public sector jobs in the defense industry since job-draining taxation is needed to support the public sector. The theory, in true trickle-down fashion, is tax cuts create jobs.

Beattie (2015):
Jobs are a big part of the economic impact of military spending. Of course there are the active troops, but there is also a considerable infrastructure built up around them that requires contractors, trades, consultants, and so on to support the military. Then there are the private businesses that spring up as a result of the military spending, including everything from weapons manufacturers to the restaurants that pop up near military bases. Here again, the free market economists point out that the public dollars going to support those jobs directly or indirectly are actually sucking the equivalent number of jobs—or more—out of the private economy due to the taxation needed to create them.

Cutting the Fat

A major contention for Con can center around the massive amount of waste and inefficiencies in the current defense budget. As I have already mentioned in the introductory remarks, it has recently been reported that $125 billion of bureaucratic waste was 'hidden" by the Pentagon.  This kind of waste and cover-up is fraudulent, but there is so much more to the story that was not reported by the Washington Post.

Gault (2016):
U.S. military spending is out of control. The Defense Department budget for 2016 is $573 billion. President Barack Obama’s 2017 proposal ups it to $582 billion. By comparison, China spent around $145 billion and Russia around $40 billion in 2015. Moscow would have spent more, but the falling price of oil, sanctions and the ensuing economic crisis stayed its hand.
As Trump has pointed out many times, Washington can build and maintain an amazing military arsenal for a fraction of what it’s paying now. He’s also right about one of the causes of the bloated budget: expensive prestige weapons systems such as the Littoral Combat Ship and the F-35 Joint Strike Fighter.
The much-maligned F-35 will cost at least $1.5 trillion during the 55 years that its manufacturer, Lockheed Martin, expects it to be flying. That number is up $500 billion from the original high estimate. But with a long list of problems plaguing the stealth fighter, that price will most likely grow.
“I hear stories,” Trump said in a speech before the New Hampshire primary, “like they’re ordering missiles they don’t want because of politics, because of special interests, because the company that makes the missiles is a contributor.”
America’s defense is crucial. But something is wrong when Washington is spending almost five times as much as its rivals and throwing away billions on untested weapon systems.
Given the horrifying picture of huge bureaucratic waste and cost overruns, there are solutions to managing cost while maintaining a strong defense posture.

Schnurer (2013):
Fortunately, there are ways to cut defense spending without hurting military capabilities. Besides maintaining its war-fighting capability, DoD, like any entity, maintains a back-office bureaucracy to oversee its business functions. That overhead accounts for roughly 40 percent of its budget. It’s hard to compare different industries, or even government agencies, but one examination of 25 industries showed average overhead rates ranging from 13 to 50 percent, with the average across all industries being 25 percent. A RAND study of overhead and administration costs among defense contractors found them to be “tremendous drivers” of weapon costs at 35 percent. The largest domestic programs—Social Security and Medicare—get by with costs in the single-digits.
Cutting Pentagon overhead to the average would save roughly $80 billion a year. Looked at another way, the department employs 800,000 civilians. Not only is that more than the population of four states, it’s not quite half of all civilian federal employees, more than twice as many as the next-largest agency (Veterans Affairs), four times the number of civilian employees at the Department of Homeland Security and basically the size of all the remaining federal agencies combined. Think there might be some savings possible there?

Moreover, a change in implementation of our defense strategy would allow the U.S. to cut military costs.

Newbie (2016):
Posen outlines a more modest military force structure best suited to his vision of restraint. Christopher Preble of the Cato Institute argues that “If [the United States] were less actively engaged and forward deployed than we were today, [the U.S.] could rely much more heavily on Reserves and the National Guard to augment a small active duty army in the truly rare instances where [the U.S. would] need a large physical presence in a distant place.” According to Preble, returning more troops home would be a return to “that model which worked really well for this country for a really long time.”


Power Rollback

Much of current U.S. defense posture and assumed need to maintain a strong military capability is based on age-old policies which require a kind of "keeping up with the Jones" mentality.  Whenever a perceived enemy developed new military capability we had to match or exceed that capability. If they build more or better warplanes, we build better systems for detecting and shooting them down. The notion of an 'arms race" comes from this kind of continuous escalation of capabilities. However, the world of today is rife with economic hardships and that reality is altering the way nations are allocating funds for military purposes.  Even our strongest rivals for international power are cutting back.  For example Russia, which relies on oil sales for revenues has been hurt by low oil prices and economic sanctions arising from the invasion of Crimea and Ukraine.

Sputnik (2016):
The 2016 military spending in the country was expected to amount to 3.14 trillion rubles (over $41 billion at the current exchange rate) or 4 percent of GDP. A 5-percent cut amounts to some 160 billion rubles.
The Russian economy, highly dependent on energy exports, is experiencing a slowdown caused by a sharp decline in global oil prices and, to a lesser extent, by Western sanctions imposed on Moscow over its alleged role in the internal Ukrainian conflict — a claim the Kremlin has repeatedly denied. In 2015, Russian military budget were reduced by almost 4 percent.

And not only Russia is cutting.  Even China, which annually increases its military spending by double-digit percentages, is experiencing a decline in its economy.  For the first time in years, though they continue to spend more, the size of their increase has been significantly cut.

Bodeen (2016):
Spending at all levels of China's government is being curbed because of a drop in the economic growth rate, which fell to a 25-year low of 6.9 percent in 2015 and is expected to decline further this year. For most years since 2000, China posted double-digit increases in military spending, and this will be only the third time in that period with a single-digit increase, including 2010's increase of 7.5 percent.
The lower increase is a reflection of the "new normal" of more moderate economic growth that President Xi Jinping has been touting for the past two years, said Alexander Neill, a senior fellow for Asia-Pacific security for the International Institute for Strategic Studies based in Singapore.

When our major competitors for world dominance cut back, why do we need to significantly increase military spending?  Already we spend more than both of our rivals and with them cutting back we can afford to maintain or reduce our current spending.

The New Reality

In reality, American power is in decline and that is not necessarily a bad thing. The new reality is there is a shift in the balance of power driven primarily by the U.S. loss of will to continue to present itself as the world's police force. We are war-weary and there is no need to be the big-brother protector for allies who have long since risen from the ashes of the Second World War.

Bandow (2012):
Today the U.S. is effectively bankrupt, but continues to write security checks which it cannot cover. America accounts for almost half of the world’s military expenditures and provides defense guarantees to prosperous, populous allies throughout Asia and Europe.  Moreover, U.S. forces wander the globe attempting to create democracy and stability ex nihilo.  At the same time Washington props up unpopular dictatorships throughout the Persian Gulf and Central Asia.  This strategy is unsustainable.
The U.S. should start acting as a true Great Power.  Many events elsewhere interest and affect America, but not in any vital or important way.  Rather than seeking to control everything and manipulate everyone overseas, Washington policymakers should calibrate response to importance, which in many cases would mean doing less or even nothing.  Benign neglect often is the best foreign policy.
Perhaps it can be shocking for some debate judges to hear the U.S. wants to give some ground rather than continue to project power in every corner of the globe, continuously, but the fact of the matter is, most American's tend to accept this position.

Bryant (2015):
No longer is there much appetite for America playing its long-standing role of global policeman, even in the face of the rise of the group calling itself Islamic State.
The cost, human and financial, is considered too great. Americans increasingly think that other countries should share the burden.
Obama, while continuing to trumpet "American exceptionalism", regularly prefaces remarks on foreign affairs by acknowledging the limits of US power, again with little public outcry.
The upshot is that the United States is no longer so keen to exert leadership in an increasingly messy world.
A decline in U.S. hegemony does not mean we are weak nor does it mean our nation is vulnerable. We still possess enormous reach and striking power. It simply means we are more willing to accept a realignment of power in which our allies now begin to take more responsibility for their own interests.

Newbie (2016):
The role of U.S. allies was also discussed. Harvard University’s Stephen Walt argues that moving to a new grand strategy could be used to force “our allies to do much more of the heavy lifting in the areas in which they live and where their interests are much greater than ours.” Eugene Gholz of the University of Texas at Austin agreed, suggesting that “our current allies should be our friends not allies,” noting how expensive it is to provide for other countries’ defense.


Small Steps Approach

Finally, I would like to close this Con position with one more approach.  As I said in the introductory remarks for the Con position it is possible to argue the U.S. can still increase spending and avoid walking on Pro ground.  As long as the spending is "modest" a strong Con team may argue it is not "significantly" increasing spending. In order to advance that idea, I will leave you with the following quotation.

O'Hanlan (2016):
Some improvements to defense capabilities are needed in light of current and projected challenges. Yet, there are ways to make American defense posture and policy more efficient. Modest budgetary increases should be adequate in the years ahead. An annual U.S. defense budget of around $535 billion in base funding, plus another $25 billion or so for nuclear weapons-related activities in the Department of Energy, plus up to $40 billion or so in supplemental funds for wartime operations and related matters makes sense. The presidential candidates should spell out the defense spending level they would seek as well as a detailed specification of the ways the money would be spent.
I don't wish to take this argument much farther other than to show such evidence exists and suggest that an experienced team could subsume many Pro advantages and avoid many of the impacts of reduced spending advocated by the Pro.  The debate will tend to center around the bright-line of what constitutes "significant" so I will leave it the clever debater to work through that contention.


For links to the Intro and Pro positions or for more information about Public Forum debate, click the Public Forum tab at the top of this page.


Sources:


Bandow, D (2012), Why Are American Troops Still Stationed In Europe?, Forbes, Oct 29, 2012, accessed 12/5/2016 at: http://www.forbes.com/sites/dougbandow/2012/10/29/why-are-american-troops-still-stationed-in-europe/#248b58ab5f0f

Beattie, A (2015), How Military Spending Affects The Economy, Investopedia, July 21, 2015, accessed 12/2/2016 at: http://www.investopedia.com/articles/investing/072115/how-military-spending-affects-economy.asp

Bodeen C (2016),China says it will boost military spending by about 7 to 8 percent this year, the smallest increase in six years, ..., U.S. News & World Report, March 4, 2016, acccessed 12/5/2016 at: http://www.usnews.com/news/world/articles/2016-03-03/china-to-boost-military-spending-by-about-7-to-8-percent

Bryant N (2015), The decline of US power?, The BBC, 10 July 2015, accessed 12/5/2016 at: http://www.bbc.com/news/world-us-canada-33440287

Gault M (2016), Donald Trump is right about defense spending – and that should scare you, Reuters News, March 2, 2016, accessed 12/5/2016 at: http://blogs.reuters.com/great-debate/2016/03/02/trump-is-right-about-defense-spending-and-that-should-scare-you/

Newbie, M (2016), The U.S. Defense Budget: Too Big, Too Small or Just Right?, The National Interest, October 13, 2016, accessed 12/3/2016 at: http://nationalinterest.org/blog/the-buzz/the-us-defense-budget-too-big-too-small-or-just-right-18033

O'Hanlan,M (2016), U.S. Defense Strategy and the Defense Budget, The Brookings Institute, Budgeting for National Priorities Project at Brookings, report finalized July 2016, accessed 12/5/2016 at: https://www.brookings.edu/wp-content/uploads/2016/07/OHanlon_FINAL.pdf

Schnurer, E (2013), How to Cut Defense Spending Without Hurting the Military, Defense One, November 8, 2013, accessed: 12/5/2016 at: http://www.defenseone.com/business/2013/11/how-cut-defense-spending-without-hurting-military/73550/

Sputnik (2016), Russia to Cut 2016 Military Spending By 5%, Sputnik News, Feb 19, 2016, accessed 12/5/2016 at: https://sputniknews.com/russia/201602191035016486-russia-military-spending/