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

December 8, 2016
Published in Uncategorized

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

These are my thoughts that unpack the topic. As I do more reading, I’ll continue to update the essay.


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One of the most divisive First Amendment debates of the late twentieth and early twenty-first centuries has been about the constitutionality of university hate speech regulations. The Supreme Court’s recent decision in Virginia v. Black,  recognizing a state’s power to criminalize intentionally intimidating cross burning,  provides the key to resolving this heated dispute. The opponents of hate speech codes argue that their enforcement contravenes the American commitment to the preservation of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.”  Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, including antisemitism, without running afoul of [established First Amendment principles].” [Connecticut Law Review]

Today’s free speech flashpoints on campus—Trump, race and sex—are part of a bigger debate about the purpose of the university. Is it an island for experiments in how to make society kinder and more just? Or is it a boot camp for the brain, where young minds are challenged by other viewpoints and learn how to defend their own? [Newsweek]


This is an extremely timely topic for a number of reasons —

(a) Trump’s campaign and victory have empowered a number of white nationalists who are giving talks at major public universities that support their racist agendas.

(b) Even before the campaign, a number of universities had taken steps to reduce hate speech on campuses.  This was a signifiant legal controversy in the 90s and those arguments are still relevant today.

(c) Even before the campaign, the issue of free speech on college campuses was significant as a number of universities were limiting speech on campus to certain safe zones (“free speech zones”) and constraining forms of expression in order to provide a safe zone for sensitive students and for those seeking “trigger warnings” before controversial views were expressed.  Some sought to protect intellectual “safe spaces.”

(d) The Department of Education has arguably been infringing free speech through the application of Title IX in an attempt to limit expression that could be considered to be sexual harassment.

All these efforts to limit speech, while with good cause, are just that — efforts to limit speech.  Many argues these efforts are unacceptable because free speech is a cornerstone right and value.  Others argue the competing values of racial and gender equality and the general importance of making students feel comfortable and protected should trump free speech concerns. It’s a pretty good debate.

To begin, let’s look at some of the key controversies related to free speech on campus.

(1a) White nationalist (and arguable racist — more on the details of that forthcoming) has recently spoken (December 7th) on the Texas A & M campus where he proclaimed, “America, at the end of the day, belongs to the white men.” (Christian Science Monitor). Although Texas A&M opposed him speaking at the university, they were not able to stop him because A&M is a public university and public universities can’t restrict free speech.

Still, he said, the university’s decision to not bar Spencer from campus was a matter of respecting the First Amendment of the U.S. Constitution, protecting freedom of speech. You can express odious, reprehensible ideas, as these people appear prepared to do,” he said in an interview Tuesday morning, as long as these events don’t incite violence or “disrupt the normal functioning of the university” by infringing on academics. [Young=Michael Young, President of Texas A&M, Houston Chronicle]

The constitutional basis is explained in more detail here —

Charles Calleros, law professor, Arizona, 1995, Arizona Law Journal, PATERNALISM, COUNTERSPEECH, AND CAMPUS HATE-SPEECH CODES: A REPLY TO DELGADO AND YUN, p. 1251-3

Although at least some of these justifications have appeared in Supreme Court opinions,   the Court has recognized countervailing interests that have justified at least limited regulation of expression such as obscenity,    deceptive advertising,   defamation,   non criminal conspiracy,   threats of harm,    invasion of the privacy of a residence,   n19 intentional infliction of emotional distress,   “fighting words,”    and other incitements to breach the peace or commit other unlawful acts.    In recent decades, nonetheless, the Court has rebuked governmental efforts to restrict harmful speech if the Court has viewed the harm as nothing more than causing offense to others.   On this basis, courts have protected the marketplace of ideas from imposed orthodoxies, striking down governmental attempts to regulate speech in public areas that is outrageous to at least a segment of the population, such as a planned Nazi demonstration,   descration of the American flag,    profane language,    and racially offensive speech.   The Court has even struck down an attempt to selectively regulate “fighting words” that express a message of racial hatred, even though a more general ban on fighting words presumably would have been valid.   In recent years, increasingly hateful speech on college campuses frequently has offended members of minority groups, threatening to undermine university policies supporting diversity.   Some judges and commentators have argued that such speech in the public areas of state college campuses should be subject to greater state control than speech in traditional public forums such as parks and sidewalks.   However, the Supreme Court is likely to apply First Amendment principles established for the community at large to analogous areas on campus.  Consequently, rules restricting hateful speech on state college campuses have failed to withstand constitutional scrutiny when they have been interpreted or applied sufficiently broadly to prohibit speech solely on the ground that it offends others.

Although it is not specific to the university context, there is a Supreme Court case, R.A.V. v. City of St. Paul, that established protection for hate speech in public spaces:

Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 CAL. L. REV. 871 (1994). Delgado — Charles Inglis Thomson Professor of Law, University of Colorado. J.D. 1974, University of California, Berkeley, Yun — Member of the Colorado Bar. J.D. 1993, University of Colorado, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1712&context=californialawreview, 874-5

Finally, the Supreme Court in R.A.V. v. City of St. Paul  struck down a city ordinance that selectively prohibited certain forms of racist expression. In R.A.V., a white youth had burned a cross on the lawn of a black family.  The local prosecutor charged him with disorderly conduct under an ordinance that forbade expression aimed at “arousing anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Even after adopting the Minnesota Supreme Court’s construction of the  ordinance to apply only to fighting words, the Supreme Court found it unconstitutional. Fighting words, although regulable in some circumstances, are not entirely devoid of First Amendment protection. In particular, they may not be prohibited based on the content of the message. Not only did the ordinance discriminate based on content, but it further discriminated based on viewpoint by choosing to punish only those fighting words which expressed an opinion with which the city disagreed.

(1b) And there are similar cases specific to the university context:

Delgado & Stefancic, 2015, Emory Law Journal, Southern Dreams and a New Theory of First Amendment Legal Realism, Richard Delgado* and Jean Stefancic*  John J. Sparkman Chair of Law, University of Alabama School of Law. ** Professor and Clement Research Affiliate, University of Alabama School of Law, http://law.emory.edu/elj/_documents/volumes/65/2/delgado-stefancic.pdf, p. 310

In Doe v. University of Michigan  and UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, two federal district courts considered challenges to university conduct codes that prohibited certain forms of demeaning speech and insult. Although lawyers and law faculty had drafted the provisions in an effort to counteract “a rising tide of racial intolerance and harassment on campus,” both courts had little difficulty finding them overbroad,  burdensome, and impermissibly vague. One declared the local school’s code unconstitutional on the ground that most racist insults did not rise to the level of fighting words, apparently the closest analogy the court could think of to the type of speech in question.  Other cases, including one at Stanford University, similarly make short shrift of the university’s effort to temper hate speech on campus.

It is important to understand that although the courts have struck-down a number of hate speech restrictions because they found them to be unconstitutional others arguably remain.

Benjamin Welch, MA Thesis, 2014, An Examination of University Speech Codes’ Constitutionality and their impact ton high-level discourse, http://www.ibtimes.co.uk/china-flies-nuclear-bomber-over-south-china-sea-send-message-donald-trump-1595951

In the “Spotlight on Speech Codes 2013,” FIRE rated 305 public institutions and 104 private institutions (409 total); 62.1 percent received a Red Light ranking, 32 percent a Yellow Light ranking and only 3.7 percent a Green Light rating. Nine schools (2.2 percent) were not ranked, as they had consistently expressed their own standards that hold its members above a commitment of free speech (military institutions, for example, qualify under this section)19. This means that an alarming 94.1 percent of surveyed universities – most of which are among the largest in the nation – have speech codes FIRE found in violation of the First Amendment, theoretically allowing university administrators to dole out punishments for speech at their subjective discretion.


With a broad, basic understanding of the climate of speech codes and potential violation of First Amendment rights on U.S. colleges, we can now inspect the arguments for speech codes, review relevant cases decided in the courts, and study a collection of university-specific incidents that illustrate the girth and breadth of recorded censorship incidents. The universities chosen for this study, DePaul University, Harvard University, University of Alabama, University of Central Florida, University of Colorado at Boulder, University of Massachusetts at Amherst, University of North Carolina at Chapel Hill, and University of Oklahoma, were chosen specifically for the number of incidents recorded or published in various forms of media that accurately depicts the range of constitutionally suspect actions universities can take against speech. Though it’s noted some of the aforementioned colleges are private institutions and not formally subject to the Constitution, these elite universities also claim complete adherence to the First Amendment and formally recognize the value of unhindered discourse. For example, Harvard’s “Free Speech Guidelines” state: Free speech is uniquely important to the University because we are a community committed to reason and rational discourse. Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching, and learning. Curtailment of free speech undercuts the intellectual freedom that defines our purpose. It also deprives some individuals of the right to express unpopular views and others of the right to listen to unpopular views.33 Through this analysis, we can see how university speech codes negatively affect freedom of speech and diminish the fruitful discourse expected of higher-learning institutions by providing a comprehensive examination of the nature of said codes and paving the way for future quantitative research. The majority of university speech codes today contain a similar theme: the prevention of “hate speech.” Hate speech traditionally is defined as verbal attacks that target people on the basis of their immutable or deeply ingrained characteristics, or any form of “speech attacks based on race, ethnicity, religion, and sexual orientation or preference.”34 Hate speech, which has never ultimately been upheld as legal under the First Amendment (minus provisions on incitement)35, is, of course, not to be confused with hate crimes. Hate crime legislation imposes a penalty enhancement in the instance a victim is selected because of his or her “race, religion, color, disability, sexual orientation, national origin or ancestry,”36 though the legality, efficacy and morality of such impositions are a discussion all of their own. Essentially, a person can legally eject a racist tirade, but cannot attack another on the basis of race or a smattering of other qualities. A convicted suspect may, for instance, receive a higher penalty for a crime committed against another while uttering epithets regarding that person’s physical or mental makeup.

George Lukianoff, President and CEO, Foundation for Individual Rights in Education, 2014, Huffington Post, Four Free Speech Lawsuits in one morning, http://www.huffingtonpost.com/greg-lukianoff/4-free-speech-lawsuits-in_b_5547537.html

These restrictions on free expression somehow remain the rule rather than the exception even though speech codes have been successfully challenged in more than two dozen lawsuits over the years. Yet, according to our estimates, 58%—nearly three-fifths!—of public universities still maintain speech codes that are unambiguously unconstitutional

How is this possible? It is possible for three basic reasons.

One, when the codes are drafted, lawyers try to write them to be in compliance with how the courts have interpreted First Amendment law. In this instance, they’ll try to focus “backdooring” a speaking restriction as conduct restriction.

Two, a court case only applies to a particular restrictions, not all  restrictions or even similar restrictions. Many court cases only apply to geographic areas a particular court has jurisdiction over.  So, just because one restriction goes away doesn’t mean they all do.

Thee, any restriction on speech can stay in place unless someone challenges it as being unconstitutional and wins that challenge. To challenge it they also have to have standing, meaning they were adversely impacted by the restriction (punished in some ways).  In many instances, the restrictions aren’t challenged.

So, although restrictions on hate speech are generally considered to be unconstitutional, some forms of them can still be found at public (and private) universities.

(1c) The issue of speech codes on campus goes beyond the issue of hate speech targeted at minorities to any speech that might offend. In fact, when this topic was first proposed in discussed (Spring 2016), this general issue was more pertinent than the racist speech issue that has become more salient since Spencer has started speaking at pubic universities (not that hate speech on campuses wasn’t a problem before then, but it was not as visible an issue).

Nina Burleigh, May 26, 2016, Newsweek, The Battle against “hate speech” on college campuses gives rise to a generation that hates speech, http://www.newsweek.com/2016/06/03/college-campus-free-speech-thought-police-463536.html

When playwright Eve Ensler wrote The Vagina Monologues, which premiered in 1996 and has been performed thousands of times by actors, celebrities and college students, she probably did not foresee a day when a performance of her feminist agitprop would be canceled because it was offensive to “women without vaginas.” And yet that day did come—at Mount Holyoke, one of the nation’s premier women’s colleges. Graduates of the Class of 2016 are leaving behind campuses that have become petri dishes of extreme political correctness and heading out into a world without trigger warnings, safe spaces and free speech zones, with no rules forbidding offensive verbal conduct or microaggressions, and where the names of cruel, rapacious capitalists are embossed in brass and granite on buildings across the land. Baby seals during the Canadian hunting season may have a better chance of survival. Their degrees look the same as ever, but in recent years the programs of study behind them have been altered to reflect the new sensitivities. Books now come with trigger warnings—a concept that originated on the internet to warn people with post-traumatic stress disorder (veterans, child abuse survivors) of content that might “trigger” a past trauma. Columbia’s English majors were opting out of reading Ovid (trigger: sexual assault), and some of their counterparts at Rutgers declined an assignment to study Virginia Woolf (trigger: suicidal ideation). Political science graduates from Modesto Junior College might have shied away from touching a copy of the U.S. Constitution in public, since a security guard stopped one of them from handing it out because he was not inside a 25-square-foot piece of concrete 30 yards away from the nearest walkway designated as the “free speech zone”—a space that needed to be booked 30 days in advance. Graduates of California public universities found it hard to discuss affirmative action policies, as administrators recently added such talk to a list of “microaggressions”—subtle but offensive comments or actions directed at a minority or other nondominant group that unintentionally reinforce a stereotype. More than half of America’s colleges and universities now have restrictive speech codes. And, according to a censorship watchdog group, American colleges and universities—including some of the most prestigious—have speech codes that “unambiguously impinge upon free speech.” Judges have interpreted the First Amendment broadly, giving Americans some of the most expansive rights of speech in the world. But over the past two decades, and especially the past few years, American college administrators and many students have sought to confine speech to special zones and agitated for restrictions on language in classrooms as well. To protect undergrads from the discomfort of having to hear disagreeable ideas and opinions, administrators and students—and the U.S. Department of Education—have been reframing speech as “verbal conduct” that potentially violates the civil rights of minorities and women. American college campuses are starting to resemble George Orwell’s Oceania with its Thought Police, or East Germany under the Stasi. College newspapers have been muzzled and trashed, and students are disciplined or suspended for “hate speech,” while exponentially more are being shamed and silenced on social media by their peers. Professors quake at the possibility of accidentally offending any student and are rethinking syllabi and restricting class discussions to only the most anodyne topics. A Brandeis professor endured a secret administrative investigation for racial harassment after using the word wetback in class while explaining its use as a pejorative.

An article in The Atlantic recounts some of the history of the controversy:

In many ways, their work has become even more complicated. Most significantly, students are, wittingly or not, becoming vocal opponents of free speech by demanding protections and safe spaces from offensive words and behaviors.

“Something changed,” Mr. Lukianoff said. “I don’t entirely know why.” But he can date the shift: October 2013, at Brown University, when the New York City police commissioner, Raymond Kelly, was invited to speak but was shouted down by students over his support of stop-and-frisk practices.

“I count that as the symbolic beginning because that’s when we noticed an uptick in student press for disinvitations, trigger warnings and microaggression policing,” he said. “That doesn’t mean administrators have stopped doing goofy things, but now they can say, at least more convincingly, that they are being told by students that they need to do those things.”

A 2016 Gallup survey bears out his concerns.

Asked if colleges should have policies against slurs and other intentionally offensive language, 69 percent of students said yes, while 27 percent believed they should be able to restrict expression of potentially offensive political views. And 63 percent wanted schools to restrict costumes that stereotype racial or ethnic groups.

While 76 percent agreed that students should not be able to prevent the news media from covering campus protests, nearly half supported reasons for curtailing that coverage: biased reporting (49 percent), the right to be left alone when protesting (48 percent) and the right to tell their own story on the internet and social media (44 percent). For black students, percentages are higher (66 percent, 61 percent and 54 percent).

Black students were least sanguine about the right to peaceable assembly: 60 percent saw it as threatened, compared with 29 percent of white students.

Over all, 54 percent polled said the climate on their campus “prevents some people from saying things they believe because others might find them offensive.”

So while this website’s initial release has focused on the hate speech issue, many other issues are relevant and will be covered in due time.

The chill can affect teaching as well. Potentially offending material is being removed from curriculums; trigger warnings are included in syllabuses; and even tenured faculty are seeing career-ending reprisals by wading into discussions or using words that could be construed as racism or sexual harassment.

Just ask Teresa Buchanan, who was fired from her tenured position as an associate professor of education at Louisiana State University. FIRE is subsidizing her suit against the university, filed in January.

Ms. Buchanan, who had taught at L.S.U. for two decades, had been approved for promotion to full professor. But several students complained that she had an abrasive and disparaging style, used profanity and sexual slang in the classroom, and made off-color jokes — one, about how quality of sex gets worse the longer the relationship.

Ms. Buchanan described herself as blunt, and called her language and humor a “pedagogical strategy” to toughen up future teachers for work in communities where such language and hostile interactions are common. But L.S.U. fired her, saying she had violated its sexual harassment policy, though students had not accused her of that. The university, citing Department of Education advisements regarding Title IX, maintains it is following the law.

The University of Chicago drew significant media attention when it issued a new policy taking a strong stand against limits on speech on campus this fall:

In August 2016, the University of Chicago (UChicago) pushed back against the nationwide trend toward student-led demands for censorship with a letter to incoming students telling them not to expect “intellectual ‘safe spaces’” when they arrived on campus this fall. At the time, FIRE hoped this would be the first of many requests from colleges and universities to students to recommit to freedom of expression during the academic year. Those hopes were quickly borne out when administrators at schools like Columbia University, Brown University, and Claremont McKenna College also made public statements committing to protect freedom of expression on campus. The UChicago letter, written by Dean of Students Jay Ellison, reads in its entirety as a staunch defense of academic freedom. Sent to incoming students along with the book Academic Freedom and the Modern University: The Experience of the University of Chicago, Ellison’s letter condemns certain recent phenomena that imperil free inquiry on college campuses. “Our commitment to academic freedom means that we do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own,” wrote Ellison in the letter. “Fostering the free exchange of ideas reinforces a related university priority— building a campus that welcomes people of all backgrounds,” Ellison continued. “Diversity of opinion and background is a fundamental strength of our community. The members of our community must have the freedom to espouse and explore a wide range of ideas.” UChicago has long been a leader among colleges and universities in its approach to freedom of speech. Last year, faculty members spearheaded the hugely influential Chicago Statement, which FIRE endorsed and promoted as a gold standard for universities articulating a commitment to free expression on campus [FIRE Quarterly].

This is a substantially different environment than the 1960s when all forms of aggressive speaking and protesting was the norm:

The French political journalist and supporter of the Royalist cause in the French Revolution, Jacques Mallet du Pan, famously summarized what often happens to extremists: “the Revolution devours its children.” I was thinking about this idiom—and its doppelgänger “what goes around comes around”—while writing a lecture for a talk I was invited to give at my alma mater California State University, Fullerton on the topic: “Is freedom of speech harmful for college students?” The short answer is an unflinching and unequivocal “No.”

Why is this question even being asked? When I was in college free speech was the sine qua non of the academy. It is what tenure was designed to protect! The answer may be found in the recent eruptions of student protests at numerous American colleges and universities, including Amherst, Brandeis, Brown, Claremont McKenna, Oberlin, Occidental, Princeton, Rutgers, University of California, University of Missouri, Williams, Yale, and others. Most of these paroxysms were under the guise of protecting students from allegedly offensive speech and disagreeable ideas—defined differently by different interest groups—with demands for everything from trigger warnings and safe spaces to microaggressions and speaker disinvitations.

Between the 1960s and the 2010s, what went wrong? [Michael Shermer, the Skeptic]

(1d) And there is also the issue of sexual harassment than can constitute expression. The government is pushing universities to combat it in ways that require limits on free speech.

Cecelia Capuzzi Simon, August 1, 2016, The Atlantic, Fighting for free speech on America’s campuses, http://www.nytimes.com/2016/08/07/education/edlife/fire-first-amendment-on-campus-free-speech.html

Ms. Buchanan’s suit cites violations of freedom of speech rights and due process. But her case, said Robert Corn-Revere, a high-profile lawyer who works with FIRE’s litigation program, is also about “the bigger picture — the widespread use of Title IX to violate First Amendment rights.” Title IX prohibits discrimination based on sex in federally funded educational programs. In the last five years, as the government has worked to crack down on sexual assault on campus, it has broadened the definitionof sexual harassment to “any unwelcome conduct of a sexual nature” and eliminated a protection that such conduct had to be offensive to a reasonable person. In April, the Justice Department cemented the definition in a letter to the University of New Mexico, which was under investigation for Title IX violations, said Will Creeley, FIRE vice president of legal and public advocacy. The letter, which faults the university for lacking proper channels to report sexual harassment and sexual assault, could have significant implications: It makes clear that any complaint of a sexual nature — say, someone finds offense in an overheard Amy Schumer joke — must be investigated even if no one claims it created a “hostile environment,” a threshold set by the Supreme Court. This “invites censorship,” Mr. Creeley said. The University of New Mexico president, Robert G. Frank, agreed that universities had a responsibility to maintain an atmosphere free of verbal sexual harassment. But the federal government, he said in an email, “offers no specific guidance” on how to do that “in the real world without infringing on free speech,” especially at universities where “the exchange of controversial or sensitive ideas is woven into the fabric of academe.” Universities investigated for violations of Title IX, or those that do not adequately investigate charges of sexual assault or harassment, face lengthy and expensive investigations — 246 cases are currently under investigation at 195 campuses. Those found guilty, public or private, could lose federal funding. Understanding Title IX, Mr. Lukianoff said, “is not sexy and it’s complicated, but it is the secret engine as to why universities overreact” in creating and enforcing speech codes and in charges of harassment or sexual assault. “When people say, ‘Look how crazy our universities have gotten,’ they need to understand that they are being pushed with a very scary threat,” he said. “They’re not just scared of loss of funding. They’re scared of the investigations.” Colleges and universities, he said, are being “asked to do the impossible.”

Given that the federal government is pushing universities to adopt these restrictions on sexually harassing speech (we’ll see what happens under President Trump), many of these restrictions obviously exist now.

It is these core controversies that set-up the January-February topic.

The Topic Wording

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

There are a number of definitional and conceptual issues that are important to consider.

Colleges and universities.  I think everyone knows what colleges and universities are. Basically, they are institutions of post K-12 higher learning.  There are a couple of important notes

(a) These are the actors in the resolution — not other levels of government, such as local, state or national governments

(b) The resolution doesn’t specific whose speech they ought not restrict, but it is assumed that they ought not restrict the constitutionally protected speech of students, faculty, and administrators — the three categories of people at a university.

Ought not.  This is one of those confusing “ought not” resolutions. It is still a straightforward resolution, but always remember that the Affirmative is arguing not to do something and the Negative is arguing to do something.  Try to keep this straight in your head.

Legally, at least in terms of hate speech it means that the Affirmative is defending the status quo. In other words, since the courts have largely concluded that hate speech restrictions are unconstitutional, the Affirmative is defending current legal doctrine.  Now, it is also the case that some hate speech regulations still exist, and certainly those aimed at sexual harassment exist, so in this respect, the Affirmative can be seen as arguing for a reduction in existing regulations on hate speech and sexually harassing speech.

Restrict.  Restrict simply means to put a limit on.  The resolution simply means they should not impose any limits that violate constitutionally protected speech.

Constitutionally protected speech.  This phrase really makes the entire wording of the resolution problematic. The  question in the literature is whether or not speech of this nature should be protected speech.  All speech is not protected. For example (the famous example),  you don’t have a right to yell, “Fire” in a crowded government theater because that could cause mass chaos and even death. These harms are outweighed the value of the speech (in this case, there is no value in yelling “fire”).  If the Negative wins that certain speech should not be allowed on a public university campus, they are really making a claim that the speech should not be protected by the First Amendment, not that it is and that it should be banned anyhow.

Charles Calleros, law professor, Arizona, 1995, Arizona Law Journal, PATERNALISM, COUNTERSPEECH, AND CAMPUS HATE-SPEECH CODES: A REPLY TO DELGADO AND YUN,p. 1252-3

Against this tide, critical race scholars such as Richard Delgado, Mari Matsuda, and Charles Lawrence have argued for an evolution in constitutional doctrine that would recognize the special harms visited by racially hateful speech. Among other things, they argue that such speech does not simply cause offense; it also silences its targets. As a consequence, it impedes self-governance and the search for truth in the marketplace of ideas, robs the community of the full benefits of the Equal Protection Clause of the Fourteenth Amendment, and precludes the self-realization of its victims even as it celebrates the autonomy of the hateful speaker.    Delgado and Yun thus conclude that, a hundred years from now, our current constitutional reluctance to permit state regulation of racist speech will seem as anachronistic as Plessy v. Ferguson   n34 seems to us now.    Interestingly, however, Delgado and Yun are hardly at odds with the moderate left in proposing specific antiracism rules. They argue for race neutral campus regulations based either on an existing tort, such as intentional infliction of emotional distress, or on “any recognized First Amendment exception.” As examples of such exceptions, Delgado and Yun mention “fighting words” or “work-place harassment” taking the form of “severe, face-to-face invective calculated seriously to disrupt the victim’s ability to function in a campus setting.”   n36 They also support enhanced penalties under Wisconsin v. Mitchell   n37 for “any campus offense . . . which was proven to have been taken with a racial motivation,”   presumably meaning an offense directed toward a particular victim because of the victim’s race.

I will unpack this more below, but the important thing to note here  is that once we determine speech (or anything) is Constitutionally protected, the argument for restricting it becomes difficult.  Basically, you are arguing on the Negative that public universities (government actors) should violate the Constitution. That’s counterintuitive and there is no way to draw the line once they start violating it.

It also doesn’t make a lot of sense because if universities started violating the Constitution the courts would just strike-down the regulations (see above).

One way around this problem with the wording of the topic is to argue that the question the resolution presents is whether or not public colleges and universities should ban any speech that is permitted elsewhere.  In other words, is there something unique about these institutions that would allow them to enact these bans.

Peter Byrne, law professor, Georgetown, 1991, Racial Insults and Free Speech Within the University, 79 Geo. L.J. 399, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2592&context=facpub (1991).

A reader might be forgiven if she at first views as absurd an argument that prohibitions on certain forms of speech are themselves protected under the first amendment. But constitutional values frequently conflict, even within the first amendment, such as when courts must accommodate the guarantees of religious free exercise and disestablishment. In an effort to preserve university authority protected by academic freedom, constitutional guarantees to individuals are sometimes read narrowly. Thus, in Regents of the University of California v. Bakke, Justice Powell sanctioned university affirmative action plans as protected by academic freedom, while suggesting that in a nonacademic setting such plans would violate the fourteenth amendment and Title VI.  Indeed, the most characteristic appearance of academic freedom in constitutional cases has been as a constitutional value balanced against or accommodated with other constitutional concerns.

There are much better ways the resolution could have been worded:

-University hate speech restrictions should be held to be constitutional
Most university speech restrictions should be held to be constitutional

I think these resolutions are what the committee meant to get it, but we have we we have, so we need to make the best of it.

Public universities. Private actors can restrict “free speech” because a person has free speech rights against the government, not against private actors. So, if Texas A&M was private, they could have acted to restrict his speech, but since public universities are public actors, they are subject to the First Amendment.

Charles Calleros, law professor, Arizona, 1995, Arizona Law Journal, PATERNALISM, COUNTERSPEECH, AND CAMPUS HATE-SPEECH CODES: A REPLY TO DELGADO AND YUN, p. 1250

Administrators on state campuses are state actors   and thus are subject to the negative directive of the First Amendment that government “shall make no law . . . abridging the freedom of speech.” Although the literal meaning of the phrase “shall make no law” suggests an absolute prohibition, our system permits states to restrict certain kinds of harmful speech   n7 and to regulate the time, place, and manner of protected speech.   Nonetheless, the Supreme Court has subjected most forms of content regulation of speech to intense scrutiny, resulting in protection of even provocative speech to a degree that sets our system apart from those of other nations.

Cecelia Capuzzi Simon, August 1, 2016, The Atlantic, Fighting for free speech on America’s campuses, http://www.nytimes.com/2016/08/07/education/edlife/fire-first-amendment-on-campus-free-speech.html

The most egregious get litigated through FIRE’s two-year-old litigation program, which targets violations at public colleges (only public institutions, which are arms of the government, are directly bound by the First Amendment).

Although the public universities/government interpretation is the predominant legal interpretation, it is worth noting that there is some dissent on this point (though this is the only card I’ve found that makes this argument):

Peter Byrne, law professor, Georgetown, 1991, Racial Insults and Free Speech Within the University, 79 Geo. L.J. 399, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2592&context=facpub (1991).

Despite the rigidities of current doctrine, a state university ought not be considered a state actor when it enacts restrictions on speech necessary to its educational purpose and its commitments to truth and humanism. For example, a university can dismiss an untenured professor because it believes his manner of speaking to be confused or banal, an authority denied the state itself. If one accepts that a university can ban racial insults because they hamper the search for truth or the development of students, the same ends for which untenured professors are sacked, then one should agree that the university should not be treated as a state actor when it adopts such restrictions. ” The second legal basis for the university’s regulation of speech is that, to the extent such restrictions further its commitments to truth and humanism, they are protected by constitutional academic freedom.”  Elsewhere I have discussed the scope of the university’s right under the first amendment to foster academic speech.  Suffice it to say here that when the university acts to safeguard liberal education, which is understood both as the disinterested pursuit of truth according to disciplinary criteria and the elaboration and instruction in culture, the state is powerless to interfere. If one accepts that the prohibition of racial insults furthers these liberal values, the decision to adopt the prohibition of speech itself stands on the high ground of the first amendment

Any.  The word “any” in the resolution creates a large potential problem for the Affirmative — if they Negative can find literally any constitutionally-protected speech that should be restricted, they can run a counterplan (popular in national circuit L-D, not acceptable everywhere) that say we should not restrict any constitutionally protected speech except X (“X” being a variable for the one instance the Negative finds).  The counterplan would simply say something like –

-Universities should not restrict constitutionally protected speech except hate speech
-Universities should not restrict constitutionally protected speech except epithets
-Universities should not restrict constitutionally protected speech except speech that sexually harasses.

These counterplans will be discussed below, but there are two topic wording issues that are worth noting here —

(1) The Affirmative can argue that the counterplan doesn’t have a net-benefit because the courts are going to eventually strike down any restriction constitutionally protected speech (by definition).

(2) If the Negative adds in a counterplan plan to have the courts uphold the university action, the counterplan essentially has the courts violate the constitution. You can read any Court disadvantage you want to that.  It’s literally illogical and would destroy the judicial system.

(3) Conceptually, if the Negative is able to win that a specific instance of speech is completely awful, it seems the Affirmative can argue that speech should not be protected by the First Amendment, making the counterplan non-competitive.  For example, you could use this piece of evidence:

Charles R. Lawrence III, If He Hollers Let , Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 480-82 (1990), Professor of Law, Stanford Law School, Stanford University, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3115&context=dlj, p. 451-7

In the context of discriminatory harassment by personal vilification, insulting or “fighting” words or non-verbal symbols are those “which by their very utterance inflict injury or tend to incite to an immediate breach of the peace,” and which are commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.  This regulation and others like it have been characterized in the press as the work of “thought police,” but it does nothing more than prohibit intentional face-to-face insults, a form of speech that is unprotected by the first amendment. When racist speech takes the form of face-to-face insults, catcalls, or other assaultive speech aimed at an individual or small group of persons, then it falls within the “fighting words” exception to first amendment protection. The Supreme Court has held  that words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not constitutionally protected. Face-to-face racial insults, like fighting words, are undeserving of first amendment protection for two reasons. The first reason is the immediacy of the injurious impact of racial insults. The experience of being called “nigger,” “spic,” “Jap,” or “kike” is like receiving a slap in the face. The injury is instantaneous. There is neither an opportunity for intermediary reflection on the idea conveyed  nor an opportunity for responsive speech. The harm to be avoided is both clear and present. The second reason that racial insults should not fall under protected speech relates to the purpose underlying the first amendment. If the purpose of the first amendment is to foster the greatest amount of speech, then racial insults disserve that purpose. Assaultive racist speech functions as a preemptive strike. The racial invective is experienced as a blow, not a proffered idea, and once the blow is struck, it is unlikely that dialogue will follow. Racial insults are undeserving of first amendment protection because the perpetrator’s intention is not to discover truth or initiate dialogue but to injure the victim.  The fighting words doctrine anticipates that the verbal “slap in the face” of insulting words will provoke a violent response with a resulting breach of the peace. When racial insults are hurled at minorities, the response may be silence or flight rather than a fight, but the preemptive effect on further speech is just as complete as with fighting words.Women and minorities often report that they find themselves speechless in the face of discriminatory verbal attacks. This inability to respond is not the result of oversensitivity among these groups, as some individuals who oppose protective regulation have argued. Rather, it is the product of several factors, all of which reveal the non-speech character of the initial preemptive verbal assault. The first factor is that the visceral emotional response to personal attack precludes speech. Attack produces an instinctive, defensive psychological reaction. Fear, rage, shock, and flight all interfere with any reasoned response. Words like “nigger,” “kike,” and “faggot” produce physical symptoms that temporarily disable the victim, and the perpetrators often use these words with the intention of  producing this effect. Many victims do not find words of response until well after the assault when the cowardly assaulter has departed. A second factor that distinguishes racial insults from protected speech is the preemptive nature of such insults — the words by which to respond to such verbal attacks may never be forthcoming because speech is usually an inadequate response. When one is personally attacked with words that denote one’s subhuman status and untouchability, there is little (if anything) that can be said to redress either the emotional or reputational injury. This is particularly true when the message and meaning of the epithet resonates with beliefs widely held in society.  This preservation of widespread beliefs is what makes the face-to-face racial attack more likely to preempt speech than are other fighting words. The racist name-caller is accompanied by a cultural chorus of equally demeaning speech and symbols.  The subordinated victim of fighting words also is silenced by her relatively powerless position in society. Because of the significance of power and position, the categorization of racial epithets as “fighting words” provides an inadequate paradigm; instead one must speak of their “functional equivalent.”  The fighting words doctrine presupposes an  encounter between two persons of relatively equal power who have been acculturated to respond to face-to-face insults with violence. The fighting words doctrine is a paradigm based on a white male point of view.  In most situations, minorities correctly perceive that a violent response to fighting words will result in a risk to their own life and limb. Since minorities are likely to lose the fight, they are forced to remain silent and submissive.  This response is most obvious when women submit to sexually assaultive speech or when the racist name-caller is in a more powerful position — the boss on the job or the mob. Certainly, we do not expect the black women crossing the Wisconsin campus to turn on their tormentors and pummel them. Less obvious, but just as significant, is the effect of pervasive racial and sexual violence and coercion on individual  members of subordinated groups who must learn the survival techniques of suppressing and disguising rage and anger at an early age.

At the same time, however, there is a strong argument as to why a counterplan to allow public colleges and universities to restrict racist speech is competitive — under the Court’s current interpretation of the First Amendment it is protected speech —

Scott J. Catlin, 1994 A Proposal for Regulating Hate Speech in the United States: Balancing Rights under the International Covenant on Civil and Political Rights, 69 NOTRE DAME L. REv. 771, 791-93 (1994), http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1971&context=ndlr

Congress shall make no law… abridging the freedom of speech . ... Any advocacy of national, racial or religious hatred that consti- tutes incitement to discrimination, hostility or violence shall be prohibited by law.’ The first quoted statement, the First Amendment free speech clause, has been extended by the United States Supreme Court5 to protect hate speech.’

[Note: This card reinforces the first two problems with the counterplan that I note, though it does help you with competition].

The Affirmative — Exploiting the Poor Topic Wording

Before I talk about how the topic will be debated in spite of the poor wording, let me suggest a strategy that I think will  be nearly impossible for the Negative to beat.

The Affirmative should make three simple arguments –

(a) Government officials should never violate the Constitution, therefore they should not enact restrictions on constitutionally protected speech. I mean how hard is it to win that government officials shouldn’t violate the Constitution? LOL

(b) Passing restrictions that definitionally violate the Constitution is stupid because those restrictions will eventually  be struck down by the courts, as they are unconstitutional This means there is no benefit to the restrictions and the courts just end up wasting their time (you can read a general card from a court clog file that says court dockets are full and that they need to spend time on X, Y, or Z, not hearing cases about blatantly unconstitutional (by definition) action.

(c) Universities have better things to do than passing unconstitutional restrictions that will eventually be struck-down by the courts, like running their universities. ‘Just cut a couple cards that say unconstitutional speech restrictions distract university administrators/waste time reducing the time they have to run their universities and run them well. Read a couple cards about why well-run universities are important to education.

Then let the Negative speak. The Negative will either read a disadvantage that says something along the lines of, “Hate Speech is really bad.” They may or may not read a counterplan to allow these restrictions.  When they read either of these arguments, read evidence that says, Hate speech should not be constitutionally protected.  This is exactly what all the authors who support restrictions on hate speech say  — that it should/can be restricted because we shouldn’t consider it to be constitutionally protected. Remember from above, “ This regulation and others like it have been characterized in the press as the work of “thought police,” but it does nothing more than prohibit intentional face-to-face insults, a *form of speech that is unprotected by the first amendment.*   AND “They argue for race neutral campus regulations based either on an existing tort, such as intentional infliction of emotional distress, or on “any recognized First Amendment exception.” There is literally NO Negative evidence that says  that universities should pass restrictions on speech that is constitutionally protected.

TKO for the Affirmative.

The Affirmative — Common

I may unpack these arguments more later, but for now I’ll highlight the major Affirmative arguments.

(a)  Free speech is the greatest thing, even greater than sliced bread. It’s particularly great on university campuses, where learning the values of free speech is important to protecting free speech outside the university.

Chris Sanders, Alabama Law Review, 2006, 58 Ala L. Rev, Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities https://www.law.ua.edu/pubs/lrarticles/Volume%2058/Issue%201/sanders.pdf, p. 172-3

Because Hazelwood, intentionally or otherwise, greatly expanded secondary school officials’ powers to censor student speech on a host of topics, college effectively provides many young people with their first taste of largely unfettered free speech rights. If Hazelwood follows students to universities, however, their introduction to a fully functioning free press could be delayed for years longer. This result would be disastrous for the journalism profession, which soon would find its ranks filled with freshly minted journalism school graduates inadequately prepared to pursue controversial stories aggressively and to endure the backlash therefrom. It also likely would exacerbate what appears to be a disturbing trend in American society: the existence of a sizable plurality of citizens who do not understand the importance of free speech rights. A 2004 University of Connecticut survey of more than 112,000 high school students found that 32% of them think the press has “too much freedom” and that 36% believe newspapers should clear their reporting with the government before publication. n116 Meanwhile, the 2005 State of the First Amendment survey discovered that those beliefs often do not change much once citizens reach the age of maturity; 23% of the survey’s adult respondents said the First Amendment “goes too far in the rights it guarantees,” down from almost 50% in 2002 (shortly after the September 11, 2001, terrorist attacks).  The extension of Hazelwood to colleges could lead an even larger number of Americans, during some of their most formative years, to become more accepting of official limitations on the content of their speech. That, in turn, could pave a dangerous path toward vastly expanded federal and state speech regulation and a society in which “free” speech is nothing more than a distant memory from an earlier time.

(b) Freedom of speech is essential to protect a marketplace of ideas that will enable social reform and protect against government oppression.

David E. Bernstein, Defending the First Amendment from Antidiscrimination Laws, 82 N.C. L. Rev. 223, 240-41 (2003). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=489063 David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law i

The primary civil libertarian defense of freedom of expression from government suppression is that such freedom is necessary to ensure the existence of a robust marketplace of ideas. More effusive advocates of the marketplace of ideas paradigm suggest that freedom of expression helps ensure the triumph of reason over prejudice, of enlightened public opinion over entrenched political and economic power. [FN42] This argument has some force, given the notable successes of the marketplace of ideas in recent American history. As recently as the 1940s, Catholics and Jews were excluded from many universities, private clubs, and corporations, African Americans were segregated by law in the South and subjected to routine discrimination almost everywhere else, Japanese Americans were incarcerated in concentration camps, American Indian children were removed from their parents and forcibly assimilated in boarding schools, and male homosexuals were generally thought to be pedophilic perverts. The status of these groups has improved dramatically, due to social and political changes made possible only because the Constitution’s guarantee of freedom of expression prevented defenders of the status quo from institutionalizing orthodox attitudes. Nevertheless, at first blush the marketplace of ideas paradigm seems to be an inadequate justification for inhibiting government regulation of speech, especially if one thinks about it in economic terms. [FN43] The unregulated marketplace of ideas is highly imperfect, and far less perfect than an unregulated economic market when it comes to protecting members of minority groups. A free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the best workers and obtain the most customers. [FN44] Meanwhile, minorities get relatively little protection in the marketplace of ideas. The average citizen seeking an ideology to guide his voting and other political activity has virtually no incentive to seek and find truth, especially since his opinion is highly unlikely to be decisive on any given matter. [FN45] On the other hand, it makes perfect sense for citizens to take pleasure in supporting positions they find intuitively appealing despite their ignorance. When average citizens commit to an ideological position, they will normally adopt a position that either makes them feel good for some reason, or that sends a signal to their social cohort that they are “good people,” regardless of the objective validity of the position.[FN46] The aggregation of votes by such “rationally irrational” voters is quite dangerous, especially for minority groups, which are often the subject of emotionally powerful but false myths, and against whom it often pays members of the majority to exhibit social solidarity. [FN47] Even voters who seek the truth regarding particular issues will have difficulty finding it. The human mind is cognitively limited, and much more suited for certain tasks, such as pursuing economic self-interest, than for others, such as adopting sensible ideological positions. [FN48] As Nobel economics laureate Ronald Coase points out, “it’s easier for people to discover that they have a bad can of peaches than it is for them to discover that they have a bad idea.” [FN49] One can hardly explain the ubiquitous appeal of nationalism, for example, as an outcome of reason. [FN50] To take a relatively innocuous example, there is no rational reason for soccer fans worldwide to get into a frenzy when the team representing their nation wins the World Cup. Meanwhile, opportunistic propagandists and demagogues find it beneficial to foment hatred based on false premises. As figures ranging from Adolf Hitler to Al Sharpton show, racist rabble-rousing can lead to public acclaim, and even grand political careers. While despised minorities can always find an economic haven even in a society where most employers discriminate against them, there is no escape for minorities if purveyors of racist ideas win out in the political process and capture the government. David Duke [FN51] poses far more danger to minorities than does Denny’s. [FN52] If anything, then, restrictions on speech that denigrate vulnerable groups are more likely to protect minorities and women over time than are laws banning discrimination in employment. [FN53] Free speech critics, though generally ignoring economic/public choice analysis, nevertheless manage to exploit the power of this point. Fiss, [FN54] Sunstein, [FN55] Morton Horwitz, [FN56] Jack Balkin, [FN57] and others [FN58] criticize liberal civil libertarians who vigorously oppose free market solutions to economic problems, especially in the employment discrimination context, but support an unregulated marketplace of ideas. If the government can make the economic marketplace fairer and more efficient, they ask, why can it not do the same for the less efficient speech marketplace? One answer, provided by law and economics luminaries such as Ronald Coase, Richard Epstein, and Richard Posner, is that government regulation of the economic marketplace is at least as wrongheaded as government regulation of the marketplace of ideas. [FN59] Epstein argues in favor of both a robust First Amendment and the repeal of antidiscrimination laws that apply to private parties. [FN60] Indeed, he argues that the two policies are synergistic because he doubts that freedom of speech and of religion can ultimately be defended from civil rights laws once it is conceded that an antidiscrimination norm is appropriate in the employment and property area. [FN61] But even liberal civil libertarians who oppose laissez-faire economics and support civil rights laws have a compelling rejoinder to advocates of censorship. Civil libertarians can recognize that the free marketplace of ideas is imperfect, but still ask the most important question in political economy, “compared to what?” [FN62] While much private speech is harmful, wrongheaded or dangerous, it’s even more dangerous to put the government in charge of policing it. [FN63] The alternative to an unregulated speech marketplace is to permit government censorship, leaving “the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.” [FN64] For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the ‘fairness’ of political debate. As one scholar puts it: [F]reedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense. [FN65] Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As Seventh Circuit Judge Frank Easterbrook wrote in an opinion striking down an anti- pornography statute inspired by academic feminists, “[f]ree speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech . . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.” [FN66] First Amendment scholar John McGinnis likewise notes that “government officials have a natural tendency to suppress speech antithetical to their interests . . . and that the free flow of information related to politics and culture threatens government hierarchies both by rearranging coalitions and revealing facts that will prompt political action.” [FN67] The framers of the American Constitution recognized that government, rather than inherently serving the public interest, is susceptible to capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as “rent-seeking.” [FN68] The Constitution and Bill of Rights attempted to establish a system of government that would limit such rent-seeking. [FN69] The First Amendment’s protection of freedom of expression was particularly important in this regard. The Founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways, to promote their own agendas, and/or to repress dissenting opinions. [FN70] The Founders’ insights have been confirmed by experience around the world, and by modern research into human political behavior by economists and evolutionary psychologists. [FN71] Permitting government regulation of information relating to politics or culture would come at a very high price to society. [FN72] Contrary to the insinuations of some critics, [FN73] then, civil libertarians recognize that freedom of expression can create many negative side effects, or, as economists put it, negative externalities. [FN74] But civil libertarians, aware of the voracious pursuit of power and self-interest endemic to politicians and their rent-seeking allies, make the cold calculus that the negative externalities caused by government regulation are likely to outweigh any negative externalities that arise from freedom of expression. [FN75] This is especially true in the United States. By contrast to more statist social systems, the United States has largely maintained a Tocquevillian nature, where political and cultural innovations arise from the grassroots, not from the government. Freedom of expression is therefore necessary for economic and cultural progress.

(c) We should always respect the Constitution [Note: This is a great preempt to any PIC]

(c1)  The impacts to protection the Constitution outweigh the harms of isolated instances of racism

David E. Bernstein, Defending the First Amendment from Antidiscrimination Laws, 82 N.C. L. Rev. 223, 240-41 (2003). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=489063

The student who callously utters a racial epithet, the bigots who refuse to admit Jews to their clubs, the co-worker who tells obnoxious sexist jokes, and the neighbor who lobbies against housing for the mentally ill–the actions of these individuals can be infuriating. But the alternative to protecting the constitutional rights of such scoundrels is much worse: the gradual evisceration of the pluralism, autonomy, and check on government power that civil liberties provide. Nevertheless, the First Amendment’s protection of civil liberties from laws reflecting antidiscrimination concerns has come under withering attack from leading legal scholars. [FN28] History teaches that when constitutional provisions lose the support of the public, and especially the support of the legal elite from which federal judges are drawn, those provisions are enervated. Courts will continue to pay lip service to such provisions, but will fail to properly enforce them.

(c2) Protecting constitutional rights is a moral side-constraint

Daryl Levinson, professor of law at University of Virginia, Spring 2000 UC Law Review

Extending a majority rule analysis of optimal deterrence to constitutional torts requires some explanation, for we do not usually think of violations of constitutional rights in terms of cost-benefit analysis and efficiency. Quite the opposite, constitutional rights are most commonly conceived as deontological side-constraints that trump even utility-maximizing government action.  Alternatively, constitutional rights might be understood as serving rule-utilitarian purposes. If the disutility to victims of constitutional violations often exceeds the social benefits derived from the rights-violating activity, or if rights violations create long-term costs that outweigh short-term social benefits, then constitutional rights can be justified as tending to maximize global utility, even though this requires local utility-decreasing steps. Both the deontological and rule-utilitarian descriptions imply that the optimal level of constitutional violations is zero; that is, society would be better off, by whatever measure, if constitutional rights were never violated.

(d) Regulations on speech fail to reduce racism, we need education campaigns and counterspeech.

Charles Calleros, law professor, Arizona, 1995, Arizona Law Journal, Paternalism, counterspeech, and campus hate-speech codes: a reply to Delgado and Yun, p. 1275-6

The same might be said for lawyers and scholars who seek to vindicate the interests of the targets of hate speech. Although our generation and those who preceded us found empowerment and a force for positive change in civil rights and anti-war demonstrations, some of us are not yet ready to relinquish that responsibility and opportunity to a new generation of students. On the other hand, many of us no longer have an appetite for work in the trenches and on the streets. After all, we are now lawyers and law professors, and we get our bread and butter and our national reputations through drafting codes and writing law review articles. And we are tempted to solve the problems of the students who follow us, not by giving them the tools for control and change, but by coming to their rescue with our new techniques of expression. Unfortunately, our solutions may be empty, because it is fairly simple for us to draft a code of conduct that prohibits hate speech and then walk away from the problem. If we guess wrongly in drawing the line between protected and unprotected speech, a court will declare the policy unconstitutional, and the students we seek to protect will have lost another battle.   n117 If we draft more cautiously and neutrally prohibit only speech that currently is subject to constitutional regulation,   n118 we sanction relatively little hateful speech. Either way, we do little in the long run to affect the climate on campus for diversity and civility. Real progress comes only at the price of an immense amount of nonscholarly elbow grease as hundreds of selfless members of a campus community work year-round with students to provide education, support, and the tools for student growth and activism. In their more recent article, Delgado and Yun argue that broad regulation of hateful speech would not compel minority students to passively submit their grievances to administrative processes; it would simply provide them a nonmandatory alternative to counterspeech.   n119 And, indeed, this is already the case for students who are victimized by threats of harm, verbal invasion of residential privacy, or other forms of speech now constitutionally subject to regulation.   n120 However, it is not clear that such students would be better off with greater constitutional flexibility in regulating hateful speech. Administrative support for education and counterspeech as a means of confronting hate speech can serve the interests of the students more fully than would broader prohibitions on speech, thus undermining the justification for further burdening interests in free speech. Those students who are less prepared than others to take advantage of such an activist approach should expect enhanced support from other students, faculty, and staff.

(e) Rules encourage the speaking of hateful language in order to make a point about free speech

Charles Calleros, law professor, Arizona, 1995, Arizona Law Journal, Paternalism, counterspeech, and campus hate-speech codes: a reply to Delgado and Yun, p. 1270-1

Delgado and Yun argue that rules against hateful speech will not entirely deprive campuses of information about bigotry, because they are not likely to suppress all hate speech. However, it is possible that such rules would provoke the least dangerous kinds of speakers to spew offensive speech: those who use outrageous language simply to make a point about the breadth of their freedom of speech. A speaker with a more troubling agenda might observe the rule against bigoted speech but engage in more injurious conduct that leaves less of a paper trail than does a hateful poster or other public utterance.

(f) Restrictions on campus free speech create echo chambers and increase the polarization of society:

Greg Lukianoff, 2014, Founder of Foundation For Individual Rights in Education, .Unlearning Liberty: Campus Censorship and the End of American Debate, . Encounter Books. Kindle Edition.

The potential for this damage to open and free-flowing dialogue does not require that every citizen experience censorship personally. Even a single conspicuous case of punishing speech can have dramatic consequences. This is what we lawyers call “the chilling effect.” If people believe there is any risk of punishment for stating an opinion, most will not bother opening their mouths; and in time, the rules that create this silence become molded into the culture. While few outside the university setting know the reality and scale of campus censorship, students are quite aware of the risks. A study of 24,000 students conducted by the Association of American Colleges and Universities in 2010 revealed that only around 30 percent of college seniors strongly agreed with the statement that “It is safe to have unpopular views on campus.” 17 (The numbers are even worse for faculty, the people who know campus the best: only 16.7 percent of them strongly agreed with the statement.) Meanwhile, the fact that this generation of students is more reticent about sharing their opinions than previous ones has been a subject of scholarly research for over a decade now. 18 So what happens when students get the message that saying the wrong thing can get you in trouble? They do what one would expect: they talk to people they already agree with, keep their mouths shut about important topics in mixed company, and often don’t bother even arguing with the angriest or loudest person in the room (which is a problem even for the loud people, as they may not recognize that the reason why others are deferring to their opinions is not because they are obviously right). The result is a group polarization that follows graduates into the real world. As the sociologist Diana C. Mutz discovered in her book Hearing the Other Side (2006), those with the highest levels of education have the lowest exposure to people with conflicting points of view, while those who have not graduated from high school can claim the most diverse discussion mates. 19 In other words, those most likely to live in the tightest echo chambers are those with the highest level of education. It should be the opposite, shouldn’t it? A good education ought to teach citizens to actively seek out the opinions of intelligent people with whom they disagree, in order to prevent the problem of “confirmation bias.” As students avoid being confronted with new ideas in the one place where it’s the most crucial that they do so, they develop an even greater unreflective certainty that they must be right. The work of Cass Sunstein explores this problem, highlighting decades of research indicating that isolation from diverse points of view can lead to a runaway process of group polarization, extremism, and groupthink. 20 This process further robs people of the intellectual growth that comes from subjecting one’s own ideas to challenges. As the Zen maxim goes, “Great doubt, great awakening. Little doubt, little awakening. No doubt, no awakening.” And this is decidedly not a problem that affects only liberal elites. Damage to the level, scope, and sophistication of debate and discussion harms us all, whether we are liberal, conservative, libertarian, or independent. As Professor Mark Bauerlein observed in his book The Dumbest Generation (2008), campus polarization promotes a low level of intellectual rigor on the part of campus Republicans just as it does for everyone else. 21 When higher education is failing to raise the standards for discussion, the state of dialogue in the nation as a whole is bound to suffer. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (p. 10). Encounter Books. Kindle Edition.

It is easy to find additional evidence about this related to the 2016 election cycle — that people simply surround themselves with people who agree with them, especially on social media, creating echo chambers and shock when another candidate wins.

(g) Students need to learn how to argue, and to (1) argue with others with they disagree and (2) argue both sides of a proposition to better understand and defend their own arguments. [Hey! You get to argue for debate!]

Greg Lukianoff, 2014, Founder of Foundation For Individual Rights in Education, .Unlearning Liberty: Campus Censorship and the End of American Debate, . Encounter Books. Kindle Edition.

Without free speech and discussion, people cling to their beliefs the same way people maintain prejudices, holding them to be true but not critically examining why, and never learning to defend them. The resulting inability to articulate why we may be right makes us even more emotional and hostile when anything questions our certainty. In Academically Adrift, Richard Arum and Josipa Roksa found that precious few college students knew how to argue or think critically and that they lacked the ability to argue more than one side of an issue. Students had a depressingly poor ability to “make an argument” and then “break an argument.”

So what would Mill predict for a system that has fallen away from a culturally enshrined process of debate and discussion? He would expect a society in which people of different beliefs do not talk to each other, because doing so might harm their certainty about what they believe. He might guess that opposing camps would surround themselves only by media sources that reflect and reinforce their views, which was possible even in Mill’s day but is a thousand times easier today. He might argue that we would be unable to reach common ground, and we might even doubt that a common ground could be possible. He would predict that those in one camp might regard the name of the other camp as a dirty word, yet often be unable to describe the views of the other side (or, often, even their own side) very accurately. Does this sound familiar to anybody? It sounds like the America I live in. And it will continue to be this way if the institution that should be our best hope of remedying uncritical certainty— higher education— is only making the problem worse. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (p. 28). Encounter Books. Kindle Edition.

The Negative

I think there are a couple of basic negative approaches, which can go together


As alluded to above, there are potential benefits to universities adopting restrictions on speech that are inconsistent with what we currently understand to be constitutionally protected speech —

(a) Reductions in hate speech

— Hate speech increases racism.

Delgado & Stefancic, 2015, Emory Law Journal, Southern Dreams and a New Theory of First Amendment Legal Realism, Richard Delgado* and Jean Stefancic*  John J. Sparkman Chair of Law, University of Alabama School of Law. ** Professor and Clement Research Affiliate, University of Alabama School of Law, http://law.emory.edu/elj/_documents/volumes/65/2/delgado-stefancic.pdf, p. 354-5

First Amendment formalism failed Latinos in 1990-2015 and, indeed, worsened their plight for two reasons. As has been seen, it reinforced a habit of mind in which a decision-maker (often a legislator, but sometimes a judge) stops his analysis upon encountering a single factor weighing in favor of the desired result. (“They are illegal. We must get rid of them.” “They bear disease; we must get rid of them.” And so forth.) When history assures that most speakers will deploy only a single reason – even an unconscious one – for deeming a result the only possible one, the ensuing conversation is apt to be perfunctory. Social scientists know this as “confirmation bias,” but Ian Haney Lopez more recently called the dynamic by a new name, “dog whistle politics.”  Second, formalistic First Amendment analysis offers the group whose fortunes are under consideration little recourse when speakers demonize them. Hate speech may, technically, still be legal. But because our system subscribes to national norms (the American Creed) of fairness and equal respect, actions that relegate entire populations to lives of misery require justification. The easiest way to provide that justification is to circulate the idea that the group deserves this form of treatment. They have it coming – they are dirty, stupid, volatile, uncivilized, with designs on our daughters, refuse to learn English, commit a large amount of crime, and want to revel in free public services, including welfare, public education, hospital treatment, and income support when they do not feel like working. They pay no taxes, crowd many to an apartment, and are noisy and messy thus impairing property values. A short, popular term for this form of depiction is “hate speech.” Although most legal scholars use the term more narrowly, it captures an important feature of the current controversy over Latino immigration and settlement in the South. Namely, the Southerners who support the cruelest treatment of the new entrants are those who think – usually with very little first-person evidence – that they are, in fact, dirty, criminal, lazy, won’t learn English, and so on, and have little hesitation about saying so. The important point is that they would hesitate to say so about practically anyone else – members of minority religions, foreign exchange students, or German workers at American automobile plants. But because they have heard that the First Amendment allows them to say anything they want, they do. And the reason that it feels just and natural to speak that way is that at some point in their lives someone – a teacher, friend, family member, or tourist – “said something bad” about the Mexicans. Moreover, the poor impression they acquired from this handful of encounters, or media stereotypes, has long historical roots dating back to a period when Mexicans and Central Americans represented the salvation of the region’s slave empire and way of life. This is why a more nuanced view of deliberation and free speech needs to arrive soon. A multiracial, multicultural, more densely populated nation needs a more flexible free-speech regime and set of rules. Our disputes concern more than parking spaces; they often have to do with the basic rules, such as immigration, by which we live together. Speech that disadvantages a discrete and insular minority calls for more careful scrutiny than speech that does not. Words of this kind can demoralize a victim, so that he or she falls silent, seeming to give assent to a racist remark or statement.  It diminishes the credibility of the one who is its target, particularly if it paints him or her as stupid or dishonest. And it gives tacit permission to those who overhear the remarks to do the same, to pass them on to others. Often such group-disparaging speech arrives via coded language, with roots in a long-forgotten past.  People are rarely, if ever, admonished for repeating the stock story, but very often punished for speaking against one.

— Historically, hate speech has been critical to sustaining racism and is responsible for the Holocaust.

Onder Bakircioglu, Freedom of Expression and Hate Speech, 16 Tulsa J. Comp. & Int’l L. 1, 18 (2008), http://digitalcommons.law.utulsa.edu/tjcil/vol16/iss1/2/ lecturer in law, Queen’s University Belfast.

Until the 1920s, it was widely and reasonably accepted that racial prejudices were inherited. Similarly, white supremacy as an ideology had been employed to justify the political and economic domination by the Western World over the “others.”27 This ideology was also employed in connection with antiblack racism, anti-Semitism, or to justify discrimination against Native Americans, Chinese, Irish, Southeast Asians, and Arabs, among others. 28 Until recent times the advocacy of white supremacy, expressions of prejudice and hatred against Jews and blacks, namely what today is called hate speech, was mainstream speech. This phenomenon was central to European culture and there were no hate groups advocating racism or white superiority as it was the official ideology itself.29 In this respect, the Holocaust was, in a sense, the culmination of the appalling prejudice against Jews, which later gave birth to the initiatives at the international level to create the United Nations and today’s human rights discourse. Today, hate-mongers seek ways to protest the abandonment of these age old prejudices against Jews, blacks, minority groups, Muslims, 30 or other members of society.3 1 As Kevin Boyle notes: Hate speech in that sense is political speech; it seeks to restore theories and ideas that were defeated by democratic struggle … and their hatred is directed at the beneficiaries of those struggles … Hate speech is also about power and economic competition... It is a struggle of ideas, the ideas of restoring white supremacy-the exclusion of Jews and other hated minorities-versus the idea of equal human dignity for all.

— Hate speech on campuses is especially bad because it undermines education, the purpose of the campus.

Alexander Tsesis, Loyola University of Chicago Law, 2010, Connecticut Law Review, Burning Crosses on Campus: University Hate Speech Codes, https://pdfs.semanticscholar.org/c4c2/a881ffd558d28d2b0d0a738981c7211d85e4.pdf, p. 621

I extend the Supreme Court’s rationale to hate speech that can intimidate minority groups as well as individuals-a controversial point, to say the least, since so many specialists erroneously believe group defamation is no longer actionable. My point, however, is that college hate speech codes serve a public good by preventing the dissemination of menacing stereotypes, symbols, and statements that deter people from enjoying the intellectual life of a university. Universities can limit hate speech that aims to stifle conversation by putting members of the campus community in fear for their well-being.

(b) Reductions in sexually harassing speech

Broad interpretations of free speech make it more difficult to combat verbal sexual harassment

So there was good reason to hope that the days of speech codes would be numbered, but in April 2011, the Office for Civil Rights of the Department of Education appeared to step back from the strong statement it had made in 2003 in favor of rational harassment codes and free speech. The agency issued a nineteen-page letter dictating to colleges the procedures they must follow in sexual harassment and assault cases. 54 Among its many troubling points is a requirement that sexual misconduct cases be adjudicated using the lowest possible standard of evidence allowable in court (which will be discussed at length in Chapter 6). Moreover, the letter made no mention of the First Amendment or free speech, ignoring the way that vague and broad definitions of harassment have been used to justify campus speech codes and censorship. By mandating many procedural steps that colleges must take to respond to allegations of sexual harassment— while failing to mandate a consistent, limited, and constitutional definition of harassment— OCR has effectively encouraged campus officials to punish speech they simply dislike. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (p. 52). Encounter Books. Kindle Edition.

Note: Lukianoff supports broad interpretations of free speech rights on campus, but this card identifies the tension between preventing broader concepts of sexual harassment and protecting free speech.  This is an argument I need to work on developing more.

(c) Reductions in microaggressions and generally offensive speech

Since universities have some restrictions on all of these in the status quo, you can argue that Affirmative advocacy of eliminating any restriction on constitutionally protected speech would eliminate these restrictions and you can read impacts to all of these.

(d)  Safe spaces/safe learning environment. The basic argument is that students need to be protected from offensive speech in order to promote safe learning environments.

This is an area I need to do more work on — the harms of microaggressions.

Impact turns

Although you can think of these as another form of a disadvantage, you can can argue that modern interpretations of the First Amendment promote racism, sexism, and other forms of micro aggression while failing to reduce the risk of tyranny.  These arguments are all supported by extensive evidence in the release.

– The First Amendment should not always be supported and can be bad (European countries where Naziism flourished, for example, have a less expansive notion of the First Amendment/free speech)

Delgado & Stefancic, 2015, Emory Law Journal, Southern Dreams and a New Theory of First Amendment Legal Realism, Richard Delgado* and Jean Stefancic*  John J. Sparkman Chair of Law, University of Alabama School of Law. ** Professor and Clement Research Affiliate, University of Alabama School of Law, http://law.emory.edu/elj/_documents/volumes/65/2/delgado-stefancic.pdf, p. 307-9

In August 1921, in a Birmingham, Alabama courtroom, a young attorney named Hugo Black received a choice assignment. A Methodist minister named Edwin Stephenson, who was a friend of Black’s law partner, had killed a Catholic priest named James E. Coyle. Coyle had committed the grievous sin of marrying Stephenson’s daughter to a middle-aged, dark-skinned Puerto Rican paperhanger named Pedro “Gussman” (probably Guzman) whom she had met at the local Catholic Church years earlier.  The daughter, Ruth, was “literarily inclined” and, evidently, high-spirited, having run away from home at least twice. The father, unless he was given to Dickens, was apparently not literarily minded. He once whipped the daughter for staying out past nine thirty and on another occasion punished her for a minor offense by locking her in her room without food and water for three days.  After learning of the marriage and, even worse, her conversion to Catholicism, Stephenson went to see Coyle, accused him of marrying his daughter “to that nigger,” and shot him to death.  At the time of the trial, Birmingham was a “cesspool of racial and religious hatred.”  Most of the jurors, the foreman, and the aggrieved father were members of the Ku Klux Klan, which organized and paid for his defense. After a sensational trial, featuring Black’s argument that Stephenson was “not normal” (i.e., insane) at the time of the murder, and klieg lights trained on Gussman to accentuate his facial features and skin color, as well as Black’s accusation that the Catholic church had robbed a decent Methodist family of their daughter and that Stephenson had shot Gussman in a fit of understandable rage, the jury acquitted Stephenson by reason of self-defense.  As his former law partner put it: “Hugo didn’t have much trouble winning that verdict.” Black’s son agreed, noting that his father “was not beyond exploiting … race if that helped his client.” After all, “he was only doing what a lawyer must do.”  The daughter and her father never reconciled, and she died a few years later at the age of thirty.  Stephenson became a martyr and hero who travelled the state celebrating his victory.  We recount this story because it contains, in capsule form, many of the elements of this article: Hispanophobia, religious orthodoxy, regional racial paranoia, suspicion of outsiders, and the manner in which community sentiment can influence legal results. It shows how First Amendment absolutism  is perfectly compatible with racism and racial antipathy. Hugo Black was one of the Amendment’s staunchest defenders. In his early years, he was also a member of the Ku Klux Klan  and showed little hesitation about marshaling social taboos – religious and racial disapproval, Hispanophobia – to secure the acquittal of a murderer. Although by the time he ascended to the Supreme Court Black had tempered his views,  the story of his defense of the Methodist minister shows how easy it is for an empowered actor, steeped in local culture, to manipulate racial antipathies while maintaining an entirely virtuous self-image. This Article begins the process of showing how this can happen and the role of First Amendment ideology in enabling it. Scholars have pointed out how First Amendment formalism can easily lead to doctrinal anomalies when courts examine cross-burning cases, for example, under precedents having to do with the law of theater marquees. They have also noted that even when this does not happen, formalism limits the range of considerations judges are able to bring to bear on sensitive cases, that the current approach gives insufficient weight to political dissent,  and that a reaction to it is beginning to set in. Elsewhere, we noted that our system of freedom of speech is most useful in connection with narrowly bounded disputes – such as trying to determine whether a municipality could raise more money from a sales tax on food than it would forfeit by encouraging residents to shop elsewhere – and less so in connection with efforts to address deeply imbedded evils like sexism or racism. In short, First Amendment formalism is relatively harmless in addressing controversies that are straightforward, preferably binary, and in which one conclusion will emerge as decidedly superior, after which the controversy is closed. With automobile speed limits, for example, bright-line rules are sensible and relatively harmless.  Legal realism plays little role in their drafting and even less in their enforcement. But with other cases (campus hate speech codes, Latino immigration, Nazis marching in Skokie), perfunctory analysis can easily overlook important elements, resulting in decisions that fail to advance even the interests at stake in the relevant community. Consider recent decisions that illustrate how this happens and how First Amendment formalism can impede the search for justice.

-International actions demonstrate that democracy and restrictions on racist speech on campuses can co-exist

Alexander Tsesis, Loyola University of Chicago Law, 2010, Connecticut Law Review, Burning Crosses on Campus: University Hate Speech Codes, https://pdfs.semanticscholar.org/c4c2/a881ffd558d28d2b0d0a738981c7211d85e4.pdf, p. 644-61

University administrators wishing to deter hate speech on their campuses will need to review Supreme Court precedents, especially Chaplinsky, R.A.V., and Black, to identify how to achieve the goal while respecting speakers’ First Amendment rights. International norms, while not binding on American courts, provide advisory insight for colleges wishing to balance the dignity rights of those targeted by hate speech and the liberty rights of speakers. 163 There are recent signs of some Supreme Court justices’ willingness to consider international legal standards. In Lawrence v. Texas, a case recognizing the constitutional value of consensual, adult sexual intimacy, 164 and Roper v. Simmons, 165 invalidating the death penalty in cases involving juvenile offenders, 166 the majority of the Court demonstrated an openness to international norms. Throughout the world, democracies recognize that on campuses and at other public places hate speech can be suppressed because it poses a social threat and does not constitute a form of legitimate political debate. The general trend is to balance the rights of speakers against the interests of persons who are the targets of hateful statements. 168 In this area of law, countries that bar the use of racial and ethnic incitement tend to follow international standards of civility. Typically, the balance is struck more in favor of the victims’ rights, in contrast to the United States’ inclination towards the interests of speakers. The international trend began in the aftermath of World War II, when the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. It obligates signatory states to punish the “[d]irect and public incitement to commit genocide.” 169 Not satisfied with the rather limited scope of the Genocide Convention, multiple members of the United Nations broadened the coverage through the Convention on the Elimination of All Forms of Racial Discrimination. The latter convention requires signatories to punish “all dissemination of ideas based on racial superiority or hatred, [and] incitement to racial discrimination.” 170 The International Covenant on Civil and Political Rights is yet another relevant international agreement. It requires that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” be “prohibited by law.” 171 In response to the virtual ubiquity of the Internet, 172 the most recent expansion of the Universal Declaration of Human Rights has been the Council of Europe’s Additional Protocol to the Convention on Cybercrime, Concerning the Criminalization of Racist and Xenophobic Acts Committed Through the Operation of Computer Systems. 173 This convention requires signatory countries to pass laws prohibiting the manipulation of electronic transmission devices to intentionally threaten or insult people who “(i) . . . belong to a group, distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors, or (ii) a group of persons which is distinguished by any of these characteristics.” 174 A glaring weakness of these four protocols is that none of them include sexual orientation as a protected class. These international norms have been incorporated into laws and mores of numerous democratic countries. Part II of this Article described hate speech attacks recently occurring at American universities; internationally, universities face similar concerns about the dissemination of hate speech. Five Canadian university presidents and vice presidents have recently networked to develop a policy against expressing antisemitic sentiments cloaked under the guise of anti-Zionism. 175 During a recent meeting of the Canadian Political Science Association, some members of the audience accused a professor of using hate speech against the nation’s aboriginal tribes, raising the question of whether college administrators could resolve the dispute. 176 The United Kingdom has witnessed a rise in campus antisemitic speech. 177 British Prime Minister Tony Blair issued a directive requiring “universities to stop anti-Jewish ideology from taking root on campuses.” 178 So much complacency had been shown, that the English government decided to “warn vice-chancellors they must not ignore antiJewish [sic] activity on campuses and must prevent prejudiced lecturers, guest speakers and extremist political organisations [from] stirring up hatred against Israel.” 179 Marking a similar trend, the German government accused a group with a substantial Muslim membership in German universities of “propagating antisemitism and urging violence against Jews.” 180 The German government has been particularly leery of this antisocial form of student behavior because of its own perilous history with antisemitic and anti-democratic student organizations, 181 and because Germany pursues a policy meant to prevent the acceptance of antisemitism in universities as it is “‘throughout the Arab Middle East.'” 182 The Canadian Ministry of the Attorney General can rely on several Canadian laws prohibiting hate speech. The Canadian Supreme Court has distinguished hate speech from protected speech. It has articulated the purpose of constitutional protections for speech to be the protection of core values of “(1) seeking the truth and the common good, (2) promoting self-fulfilment [sic] of individuals by allowing them to develop thoughts and ideas as they see fit, and (3) ensuring that participation in the political process is open to all persons.” 183 The Supreme Court of Canada has determined that hate speech is incompatible with these values. 184 While free speech is a quintessentially fundamental right, its centrality for individual self-governance is compatible with “reasonable limits prescribed by law” as long as they are necessary for maintaining “a free and democratic society.” 185 Canada’s expositive definition of “hate speech” is pertinent even though it is broader than the U.S. Supreme Court’s ruling in Black. Canada is openly willing to examine whether a hateful statement against an identifiable group is harmful to a pluralistic society, while the United States is only willing to place limitations on speech that intentionally incites harmful conduct. 186 In a case dealing with telephonically transmitted hate speech, the Canadian Supreme Court explained the importance of limiting speech that vilifies individuals. 187 The explanation is pertinent to universities identifying unacceptable speech in a multiethnic campus setting: [M]essages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.  While barring verbal attacks against individual dignity will not survive the Black test, Canadian jurisprudence is compatible with U.S. defamation case law. A foremost purpose of group and individual defamation law is the protection of an individual’s or a group’s public reputation. The U.S. Supreme Court considers an “individual’s right to the protection of his own good name” to be grounded in “‘our basic concept of the essential dignity and worth of every human being.'”  College administrations can protect the higher educational experience of individuals to freely exchange ideas on campus without being harassed by racists, xenophobes, sexists, homophobes, or ethnocentrists and without running afoul of the First Amendment’s injunctions. With the advent of the Internet, university computer equipment can also be used to spread propaganda attacking a group’s purported racial, religious, or ethnic inferiority. Canada has confronted a similar problem of hate purveyors, like Ernst Zundel and Heritage Front,  who used the Internet to inflame prejudice and spread discrimination. The Canadian Human Rights Act of 2001 addresses the increasingly common transmission of information through the Internet and is applicable to threatening or defamatory student speech.  The law contains a provision for penalizing anyone who repeatedly uses telecommunications devices, including the Internet, to expose people “to hatred or contempt” based on their “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability [or] conviction for which a pardon has been granted.” Prior to the addition of the section addressing Internet communications, the Supreme Court of Canada upheld restraints on telephonic dissemination of hate speech. The Court came to its conclusion after balancing freedom of speech with other human rights obligations. Extrapolating the Court’s reasoning to the campus hate speech debate, regulations against hate propaganda may be adopted in Canada to better promote “equal opportunity unhindered by discriminatory practices.” France, like the United States and Canada, intrinsically values free speech, asserting, in its declaration of rights, “[t]he free communication of ideas and opinions” to be “one of the most precious of the rights of man.” 196 Yet a student, faculty member, or visitor to a French university who uses the Internet to send hateful messages, create discriminatory webpages, or post comments on a newsgroup can be criminally prosecuted for abusing that freedom. The threat of hate speech is taken so seriously in France that it even requires Internet service providers (“ISPs”) to “assist law enforcement officers in eliminating online material that justifies crimes against humanity, incites racial hatred or can be classified as child pornography.”  As the French government explains, the “precious” value of “free communication of thoughts and opinions” does not preclude the government from punishing the “incitement to discrimination, hatred and violence.”  This legal sensibility, which is meant to preserve democratic institutions, precludes the use of traditional free speech forums, including newspapers, parks, and universities, from being converted into podiums of defamation and incitement to harm It also has implications for regulating digital communication. The Tribunal de Grande Instance de Paris has established precedent that allows for the criminal prosecution of hateful Internet content even when its source is extraterritorial.  Plaintiffs, who included the union for French Jewish Students, alleged that, by allowing the posting of hyperlinks to auctions of Nazi memorabilia on its search engine, Yahoo! violated R645-1 of the French Criminal Code.The French court asserted jurisdiction and rendered judgment over the corporation even though Yahoo!’s computer servers were located in California. The court found that it had the power to adjudicate the case because there was a “domestic effect[]” in France of prohibited content that was accessible to French web surfers. Another well-known French case involved the conviction of Robert Faurisson, a prominent Holocaust denier. In that case the Tribunal de Grande Instance de Paris found it had jurisdiction over the criminal case, even though Faurisson had published his postings on a server located in the United States.  This was similar to the Canadian Human Rights Commission’s order requiring white supremacist Ernst Zundel to remove antisemitic statements from his California-based website that was nevertheless accessible in Canada. These precedents allow French and Canadian courts to adjudicate cases where hateful materials that give rise to causes of action are originally posted on American college servers, far outside the countries’ geographic boundaries. German courts have likewise determined that they have the authority to render judgments against hateful messages that can be accessed in that country even though they were posted extraterritorially. Hate speech originating on U.S. campuses may therefore be subject to German criminal penalties. Germany’s highest criminal and civil court, the Federal Court of Justice, recently found that Gerald Fredrick T ben, the founder of the Adelaide Institute, could be imprisoned once he arrived in Germany even though his Holocaust denial was written on and posted from a computer located outside of Germany. The court established that it had jurisdiction over the case because T ben had made his statements easily accessible to Germans through the Internet. T ben’s web posting violated German criminal law because, as the court found, his distorted statements about history disturbed the peace and contaminated the political climate by making light of Nazi atrocities.  The court sentenced him to ten months in prison. More recently, in July 2009, Germany’s Justice Minister urged foreign ISPs to enforce their policies against spreading far-right ideologies. The applicability of German, Canadian, and French hate speech laws to extraterritorial defendants means that litigants in those countries can effectively sue people who post hate speech on computers housed at American universities. Even though Germany, Canada, and France will apply their own laws to those cases, enforcement of judgments against the purveyors of hate speech will prove difficult. The United States’ free speech doctrine is more libertarian, placing greater emphasis on expressive autonomy than many European nations, and thus raising substantive recovery problems.  Ordinarily, U.S. courts enforce foreign judgments, but they will not do so where the original judgment violates a party’s U.S. constitutional rights.A potential international comity dispute with the French court was recently avoided when Yahoo! sought a declaratory judgment from a federal court to prevent the enforcement of the judgment of the Tribunal de Grande Instance de Paris, claiming that enforcement of its judgment would violate the company’s First Amendment rights. 213 While the district court had entered a summary judgment for Yahoo!, the Ninth Circuit reversed en banc, ultimately dismissing the case for lack of ripeness, thereby avoiding the First Amendment and due process issues. Even an unenforceable victory, however, can have communicative value, deterring further publication on the Internet of hate materials on college computers that degrade protected groups. While Yahoo! disputed the order, it independently began blocking the sale of Nazi paraphernalia to French users of its popular search engine.  German penal provisions are part of a democratic system of governance that provides a constitutional guarantee to enjoy “the right freely to express and disseminate” ideas.  To further underscore the importance of free speech, the German Constitution, known as the Basic Law, prohibits censorship. On the other hand, restraints on symbols that degrade historically vulnerable groups do not constitute an intrusion on democratically protected freedoms.  Universities in Germany, in addition to other components of the country’s social apparatus, are responsible for preventing discourse from being used to instigate the mass violence that was part and parcel of the Nazi era.  While German history is unique and its legal sensibilities are particularly heightened to any racist communications that are likely to stoke popular antisemitism, the United States’ history with slavery and Jim Crow laws also points to the need for restrictions on the use of intimidating forms of hatred. European and Canadian speech laws emphasize the government’s role in prosecuting violations of human dignity. The first Article of the German Basic Law, for example, imposes a national obligation to “respect and protect” “[h]uman dignity.”  A scholar pointed out that Germany’s “balancing [of] human dignity and freedom of expression” is more attuned with Western democracies than “America’s robust free speech protection.”  In the United States, the Virginia v. Black model recognizes the state’s power to enforce criminal hate speech laws that prohibit intentional intimidation; however, R.A.V.’s stricture against criminalizing simply offensive speech would likely render unconstitutional any dignity protection statutes. Despite the difference between the American and German doctrinal treatments-with the United States being less inclined to follow international standards for curbing genocidal and deprecatory statements-dignity is by no means incompatible with our case law. But in America dignity is protected by civil statutes, rather than by criminal laws as it is in Europe. The Supreme Court in the seminal case on private defamation explicitly stated that defamation law is meant to safeguard “‘our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.'” 224 Germany recognizes that disparaging remarks based on race and ethnicity are social offenses, not merely personal affronts. To that end, a German criminal provision prohibits the distribution of any “written materials . . . which describe cruel or otherwise inhuman acts of violence against human . . . beings in a manner expressing glorification or which downplays such acts of violence or which represents the cruel or inhuman aspects of the event in a manner which violates human dignity.” German law has much to teach about democratic standards of governance that do not interfere with core principles of free speech. Its law prohibits: (1) incitement to hate directed at a segment of the population; (2) advocacy to take “violent or arbitrary measures against them”;  and (3) insults maliciously exposing others to contempt.  In finding these standards to be constitutional, the German Constitutional Court has balanced constitutional provisions against individual liberties in a way that also makes sense in university settings. The state government in Munich brought an action under the Public Assembly Act against Holocaust denier David Irving for a speech he gave before the National Democratic Party of Germany. The Court found the law did not violate Basic Law Article 5(1)’s protection for the open expression of public opinions.  Its decision differentiated between opinions, which are subjective, unverifiable statements, and statements of fact. Factually false statements about the Holocaust enjoy no constitutional or statutory protections in Germany because they are “untrue and cause[] harm to the reputation and dignity of Holocaust survivors and their families.”Holocaust denial insults Jews by disparaging their sincerity and veracity, making them the object of opprobrium. A look at a few other cases will demonstrate how Germany differentiates a fact from an opinion. A 1994 case that was also decided by the Constitutional Court established that the right to free speech does not protect individuals propagating the claim that the Auschwitz concentration camp never existed. A Berlin state court convicted a German neo-Nazi leader in 1995 for also teaching that Auschwitz was a lie because the claim spread “racial hatred and denigrat[ed] the state.”Contrast these two cases with the recitation of the opinion that Germany was not at fault for starting World War II, which is a protected form of speech. Like Germany, England is more in accord with international understandings about foreseeable dangers hate speech poses to pluralistic order than is the United States.An English statute defines the spread of racial hatred to include disparagements about a person’s color, race, nationality, and ethnicity. To establish a prima facie case, a British prosecutor must prove that the defendant either meant for the abusive, threatening, or insulting words “to stir up racial hatred” or that “having regard to all the circumstances racial hatred is likely to be stirred up thereby.” Violations can occur in either public or private places, but not where the statements are made in a dwelling to others assembled there.  In 2006, an additional provision was added to the Act prohibiting the spread of religious hatred.  This is not to say that all religious criticism is culpable. To the contrary, the amendment explicitly protects the expression of “antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents.” ISPs are required to contact the police National Community Tension Team; failure to do so and violation of the ISPs’ own terms of operation can result in their administrative removal. In another indication of progressive policymaking aimed at derogatory stereotyping, under the Criminal Justice and Immigration Act of 2008, sexual orientation is now a protected category.  Purposeful and negligent disparagements fit the British criminal definition of hate speech. This differs from the United States, where only intentionally intimidating speech can be criminally punished.  That is not to say that the negligent-fault conception of speech is wholly distinct from U.S. law, where civil penalties can attach for publicly spreading false defamation.  In England and the United States, a university can punish defamatory comments made in either a public dormitory meeting or on a college green. In other words, universities can impose various disciplinary penalties without involving the criminal system. Australia is another member of the British Commonwealth with hate speech laws. Its constitution does not explicitly mention the fundamental value of free speech, but its Supreme Court has long recognized it to be an implicit constitutional right. An Australian appellate court found that expressions meant to insult, humiliate, or intimidate others convey a realistic risk of harming the democratic society that places a high value on tolerance and political pluralism.The recognition of insults as outside the sphere of free speech goes beyond the U.S. precedents on hateful incitements. While university hate speech codes that prohibit the use of insults and humiliating statements are unlikely to survive U.S. judicial scrutiny because they would likely run afoul of the holding either in R.A.V. or in Black, Australia’s promotion of tolerance and pluralism is entirely compatible with American values. Universities can promote collegiality on campuses by instituting anti-intimidation and group defamation provisions without running afoul of the First Amendment. Australia’s approach to instigative speech is consistent with that of European countries that have made the legislative connection between instigative speech and the instigation of harmful conduct. They have differentiated between instigation to commit ordinary criminal violence and the expression of ideas or display of signs attacking vulnerable groups. Denmark’s criminal code prohibits the intentional dissemination of statements relating information that threatens, insults, or degrades a group of persons “on account of their race, colour, national or ethnic origin, belief or sexual orientation.”Apparently, in recognition of the importance free speech plays in Denmark’s culture, the Danish Director of Public Prosecutions has decided that the provisions of that law should be read narrowly to prevent any interference with democratic institutions.  In practice, this cautious method means the law applies only when someone “‘might provoke in someone serious fear for his own or other persons’ lives, health or well-being, [or] threatens to commit a punishable act.'” The rationale behind the Danish law has striking similarity to the U.S. Supreme Court’s holding in Black. One Danish case arose from a cross burning incident “in the road outside a house” that the instigators “knew was inhabited by Turks.” This was reminiscent of the public cross burning that two of the three defendants in Black had perpetrated to intimidate a neighborhood resident. As in the U.S. case, the High Court for the Eastern Division of Denmark convicted the defendants because they chose the symbol for its historically intimidating message.  This case is distinct from circumstances involving the expression of the opinion that Danish and American universities cannot prohibit hate speech without infringing on individuals’ deep sense of freedom and self-determination. Protected opinion was involved in complaints from the Muslim Danish community regarding twelve cartoon images criticizing radical Islam. The Director of Public Prosecutions for Denmark decided not to proceed with criminal charges against the newspaper, presumably because there was no indication that they were extremely derogatory or posed any serious danger to the well-being of any group.  Similarly, to avoid running afoul of the First Amendment, a university community could only prosecute intimidating statements. Finland is another country that honors free expression,  but its law nevertheless criminalizes the use of racial, ethnic, and religious threats, slanders, and insults. An author and two newspaper editors were fined in 2007 under Finland’s hate speech law for antisemitic remarks made in a published letter. The Swedish Constitution explicitly guarantees all citizens the rights “publicly to express [their] thoughts, opinions and sentiments, and in general to communicate information on any subject whatsoever on sound radio, television and certain like transmissions, films, video recordings, sound recordings and other technical recordings.”  A provision of the Swedish Penal Code, nevertheless, punishes anyone for spreading “statements or communication[s]” that “threaten[] or express[] contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin or religious belief.”  A 2003 amendment to the law also criminalizes incitement against homosexuals. The Swedish Supreme Court, in a 2005 decision, upheld this law. The opinion distinguished between “objective criticism of certain groups,” which the country’s constitution protects, and statements triggering criminal liability: “Naturally, the principles of freedom of speech and the right to criticize may not be used to protect statements expressing contempt for a group of people, for example, because they are of a certain nationality and hence are inferior.”  Government restraints must never exceed that which is necessary in light of the purpose for which it is created, and may not go so far as to constitute a threat against the free exchange of opinions, which is one of the foundations of democracy, and may not be done only on the grounds of political, religious, cultural or other such philosophy. The free exchange of even harsh criticism of groups on campuses and elsewhere is protected as long as it does not overstep the bounds of “objective and responsible discourse regarding the group in question,” but intentionally threatening messages or those expressed in contempt of the group are outside the scope of fundamental protections. The true threats provision of the Swedish decision is compatible with U.S. Supreme Court jurisprudence. As in the United States and Sweden, merely opinionated racism or ethnocentrism is not actionable in Norway. While access to information is “a cornerstone of Norwegian democracy,” this principle is not a bar against hate speech legislation. Norwegian Penal Code Section 135a prohibits the intentional public use of racist, xenophobic, ethnocentric, and homophobic speech to threaten or insult others or to subject them to hatred.  This comparative analysis is meant to demonstrate that many democratic countries have criminal statutes punishing hate speech. These countries have found that pluralism is furthered by protecting the dignitary rights of targeted groups.

-Racist speech undercuts the marketplace of ideas

Charles R. Lawrence III, If He Hollers Let , Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 480-82 (1990), Professor of Law, Stanford Law School, Stanford University, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3115&context=dlj, p. 468-72

In striking a balance, we also must think about what we are weighing on the side of speech. Most blacks — unlike many white civil libertarians — do not have faith in free speech as the most important vehicle for liberation. The first amendment coexisted with slavery, and we still are not sure it will protect us to the same extent that it protects whites. It often is argued that minorities have benefited greatly from first amendment protection and therefore should guard it jealously. We are aware that the struggle for racial equality has relied heavily on the persuasion of peaceful protest protected by the first amendment, but experience also teaches us that our petitions often go unanswered until they disrupt business as usual and require the self-interested attention of those persons in power. Paradoxically, the disruption that renders this speech effective usually causes it to be considered undeserving of first amendment protection.  Note the cruel irony in the news story appearing in the “Newsreel” at the beginning of this Article that describes Stanford President Kennedy’s justification for prosecuting students engaged in a peaceful sit-in for violation of the University’s Fundamental Standard. While protesting students were punished, the racist behavior the students were protesting went unpunished. This lack of symmetry was justified on the grounds that punishment might violate the bigots’ first amendment rights. Once faith in this symmetry is shaken, the absolutist position loses credence. It is difficult for us to believe that we should fight to protect speech rights for racists because that will ensure our own speech rights. Our experience is that the American system of justice has never been symmetrical where race is concerned. No wonder we see equality as a precondition to free speech, and we place more weight on that side of the balance aimed at the removal of the badges and incidents of slavery that continue to flourish in our culture. Blacks and other people of color are equally skeptical about the absolutist argument that even the most injurious speech must remain unregulated because in an unregulated marketplace of ideas the best ideas will rise to the top and gain acceptance. Our experience tells us the opposite. We have seen too many demagogues elected by appealing to America’s racism. We have seen too many good, liberal politicians shy away from the issues that might brand them as too closely allied with us. The American marketplace of ideas was founded with the idea of the racial inferiority of non-whites as one of its chief commodities, and ever since the market opened, racism has remained its most active item in trade. But it is not just the prevalence and strength of the idea of racism that makes the unregulated marketplace of ideas an untenable paradigm for those individuals who seek full and equal personhood for all. The real problem is that the idea of the racial inferiority of non-whites infects, skews, and disables the operation of the market (like a computer virus, sick cattle, or diseased wheat). Racism is irrational and often unconscious.  Our belief in the inferiority of non-whites trumps good ideas that contend with it in the market, often without our even knowing it.  In addition, racism makes the words and ideas of blacks and other despised minorities less saleable, regardless of their intrinsic value, in the marketplace of ideas. It also decreases the total amount of speech that enters the market by coercively silencing members of those groups who are its targets. Racism is an epidemic infecting the marketplace of ideas and rendering it dysfunctional. Racism is ubiquitous. We are all racists.  Racism is also irrational. Individuals do not embrace or reject racist beliefs as the result of reasoned deliberation.  For the most part, we do not recognize the myriad ways in which the racism pervading our history and culture influences our beliefs. In other words, most of our racism is unconscious.  The disruptive and disabling effect on the market of an idea that is ubiquitous and irrational, but seldom seen or acknowledged, should be apparent. If the community is considering competing ideas about providing food for children, shelter for the homeless, or abortions for pregnant women, and the choices made among the proposed solutions are influenced by the idea that some children, families, or women are less deserving of our sympathy because they are not white, then the market is not functioning as either John Stuart Mill or Oliver Wendell Holmes envisioned it. In John Ely’s terms there is a “process defect.” Professor Ely coined the term “process defect” in the context of developing a theory to identify instances in which legislative action should be subjected to heightened judicial scrutiny under the equal protection clause. Ely argues that the courts should interfere with the normal majoritarian political process when the defect of prejudice bars groups subject to widespread vilification from participation in the political process and causes governmental decisionmakers to misapprehend the costs and benefits of their actions. This same process defect that excludes vilified groups and misdirects the government operates in the marketplace of ideas. Mill’s vision of truth emerging through competition in the marketplace of ideas relies on the ability of members of the body politic to recognize “truth” as serving their interest and to act on that recognition. As such, this vision depends upon the same process that James Madison referred to when he described his vision of a democracy in which the numerous minorities within our society would form coalitions to create majorities with overlapping interests through pluralist wheeling and dealing. Just as the defect of prejudice blinds the white voter to interests that overlap with those of vilified minorities, it also blinds him to the “truth” of an idea or the efficacy of solutions associated with that vilified group.  And just as prejudice causes the governmental decisionmakers to misapprehend the costs and benefits of their actions, it also causes all of us to misapprehend the value of ideas in the market. Prejudice that is unconscious or unacknowledged causes even more distortions in the market. When racism operates at a conscious level, opposing ideas may prevail in open competition for the rational or moral sensibilities of the market participant. But when an individual is unaware of his prejudice, neither reason nor moral persuasion will likely succeed.  Racist speech also distorts the marketplace of ideas by muting or devaluing the speech of blacks and other non-whites. An idea that would be embraced by large numbers of individuals if it were offered by a white individual will be rejected or given less credence because its author belongs to a group demeaned and stigmatized by racist beliefs. An obvious example of this type of devaluation would be the black political candidate whose ideas go unheard or are rejected by white voters, although voters would embrace the same ideas if they were championed by a white candidate. Racial minorities have the same experiences on a daily basis when they endure the microaggression of having their words doubted, or misinterpreted, or assumed to be without evidentiary support,  or when their insights are ignored and then appropriated by whites who are assumed to have been the original authority.  Finally, racist speech decreases the total amount of speech that reaches the market. I noted earlier in this Article the ways in which racist speech is inextricably linked with racist conduct. The primary purpose and effect of the speech/conduct that constitutes white supremacy is the exclusion of non-whites from full participation in the body politic. Sometimes the speech/conduct of racism is direct and obvious. When the Klan burns a cross on the lawn of a black person who joined the NAACP or exercised his right to move to a formerly all-white neighborhood, the effect of this speech does not result from the persuasive power of an idea operating freely in the market. It is a threat, a threat made in the context of a history of lynchings, beatings, and economic reprisals that made good on earlier threats, a threat that silences a potential speaker.  The black student who is subjected to racial epithets is likewise threatened and silenced. Certainly she, like the victim of a cross-burning, may be uncommonly brave or foolhardy and ignore the system of violence in which this abusive speech is only a bit player. But it is more likely that we, as a community, will be denied the benefit of many of her thoughts and ideas. Again MacKinnon’s analysis of how first amendment law misconstrues pornography is instructive. She notes that in concerning themselves only with government censorship, first amendment absolutists fail to recognize that whole segments of the population are systematically silenced by powerful private actors. “As a result, [they] cannot grasp that the speech of some silences the speech of others in a way that is not simply a matter of competition for airtime.” 

-The Constitution won’t protect minorities if there is racism in society  (note — above there is an argument that hate speech is responsible for racism)

Juan Williams, The Survival of Racism Under the Constitution, 34 Wm. & Mary L. Rev. 7 (1992), http://scholarship.law.wm.edu/wmlr/vol34/iss1/3

In the specific case of black Americans, the rights listed for American citizens in the Declaration of Independence and Constitution simply went ignored. Blacks did not receive full recognition as American citizens until the Civil War Amendments. 24 The society that created the Declaration, the Constitution, and Bill of Rights, was racially separate. Although the Framers were able to comprehend the ideals of justice, equality, and freedom, the America that existed when they drafted the Constitution was a nation already deep in the mire of oppression based on skin color. Benjamin Banneker, the black mathematician, wrote to Jefferson to ask how the language of the Declaration could speak of men being “created equal, ’25 when Jefferson, one of its authors, was a slaveholder, and therefore, a member of a fraternity that employed “fraud and violence”26 to keep slaves under “groaning captivity. 2′ 7 In our democratic society, the white majority acted without regard to the Bill of Rights in enacting laws that enforced this inequality of treatment and inequality of opportunity.28 Slavery, lynching, and rape were illegal acts when people with white skin were the victims. When it came to blacks, however, the nation’s majority was blind to perceptions of criminality.2 9 From the majority’s point of view, having to deal with an inferior race was a matter of the white man’s burden. The racism of this majority, and its murderous instinct regarding black people and Native Americans, leads to this conclusion: equality is a function of attitude formed by popular opinion, not the nation’s laws. Neither the laws nor the founding precepts of the Constitution or the Bill of Rights determines the level of equality that black people, women, members of religious minorities, or any other discreet group experience day to day in America. Equality is a byproduct of the popular opinion of the day; the way that the white majority-and even other blacks and minorities-treats a black person or any other minority is a consequence of stereotypes. The stereotypes produce attitudes that lead to human actions and laws that, history tells us, can justify the most horrendous oppression.

Plan Inclusive Counterplans (PICS)

As noted in the discussion of the topic wording, there are a number of PICs that you can read.

Hate speech PIC.  This PIC simply says that all speech restrictions except those that restrict hate speech should be eliminated.   This is a PIC because you don’t need to defend restricting any speech that might offend an individual but rather speech that poses a societal harm.

Stanley Fish, New York Times, June 4, 2012, The Harm in Free Speech, http://opinionator.blogs.nytimes.com/2012/06/04/the-harm-in-free-speech/?_r=0

Jeremy Waldron’s new book, “The Harm in Hate Speech,” might well be called “The Harm in Free Speech”; for Waldron, a professor of law and political theory at New York University and Oxford, argues that the expansive First Amendment we now possess allows the flourishing of harms a well-ordered society ought not permit. Waldron is especially concerned with the harm done by hate speech to the dignity of those who are its object. He is careful to distinguish “dignity harms” from the hurt feelings one might experience in the face of speech that offends. Offense can be given by almost any speech act — in particular circumstances one might offend by saying “hello” — and Waldron agrees with those who say that regulating offensive speech is a bad and unworkable idea. But harms to dignity, he contends, involve more than the giving of offense. They involve undermining a public good, which he identifies as the “implicit assurance” extended to every citizen that while his beliefs and allegiance may be criticized and rejected by some of his fellow citizens, he will nevertheless be viewed, even by his polemical opponents, as someone who has an equal right to membership in the society. It is the assurance — not given explicitly at the beginning of each day but built into the community’s mode of self-presentation — that he belongs, that he is the undoubted bearer of a dignity he doesn’t have to struggle for. Waldron’s thesis is that hate speech assaults that dignity by taking away that assurance. The very point of hate speech, he says, “is to negate the implicit assurance that a society offers to the members of vulnerable groups — that they are accepted … as a matter of course, along with everyone else.” Purveyors of hate “aim to undermine this assurance, call it in question, and taint it with visible expressions of hatred, exclusion and contempt.” “Visible” is the key word. It is the visibility of leaflets, signs and pamphlets asserting that the group you belong to is un-American, unworthy of respect, and should go back where it came from that does the damage, even if you, as an individual, are not a specific target. “In its published, posted or pasted-up form, hate speech can become a world-defining activity, and those who promulgate it know very well — this is part of their intention — that the visible world they create is a much harder world for the targets of their hatred to live in.” (Appearances count.) Even though hate speech is characterized by First Amendment absolutists as a private act of expression that should be protected from government controls and sanctions, Waldron insists that “hate speech and defamation are actions performed in public, with a public orientation, aimed at undermining public goods.” That undermining is not accomplished by any particular instance of hate speech. But just as innumerable individual automobile emissions can pollute the air, so can innumerable expressions of supposedly private hate combine to “produce a large-scale toxic effect” that operates as a “slow-acting poison.” And since what is being poisoned is the well of public life, “it is natural,” says Waldron, “to think that the law should be involved — both in its ability to underpin the provision of public goods and in its ability to express and communicate common commitments.” After all, he reminds us, “Societies do not become well ordered by magic.” Waldron observes that legal attention to large-scale structural, as opposed to individual, harms is a feature of most other Western societies, which, unlike the United States, have hate speech regulations on their books. He finds it “odd and disturbing that older and cruder models remain dominant in the First Amendment arena.” But as he well knows, it is not so odd within the perspective of current First Amendment rhetoric, which is militantly libertarian, protective of the individual’s right of self-assertion no matter what is being asserted, and indifferent (relatively) to the effects speech freely uttered might have on the fabric of society. It was not always thus. At one time, both the content and effects of speech were taken into account when the issue of regulation was raised. Is this the kind of speech we want our children to see and hear? Are the effects of certain forms of speech so distressing and potentially dangerous that we should take steps to curtail them? Is this form of speech a contribution to the search for truth? Does it have a redeeming social value? Since New York Times v. Sullivan (1964) these questions, which assess speech in terms of the impact it has in the world, have been replaced by a simpler question — is it speech? — that reflects a commitment to speech as an almost sacrosanct activity. If the answer to that question is “yes,” the presumption is that it should be protected, even though the harms it produces have been documented. Waldron wants to bring back the focus on those harms and restore the reputation of Beauharnais v. Illinois (1952), in which the Supreme Court upheld a group libel law. The case turned on the conviction of a man who had distributed leaflets warning Chicagoans to be alert to the dangers of mongrelization and rape that will surely materialize, he claimed, if white people do not unite against the Negro. Speaking for the majority, Justice Felix Frankfurter wrote that “a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial group to which he willy-nilly belongs as on his own merit.” With the phrase “on his own merit,” Frankfurter gestures toward the view of dignity he is rejecting, the view in which dignity wells up from the inside of a man (or woman) and depends on an inner strength that asserts itself no matter how adverse or hostile external circumstances may be, including the circumstance in which the individual is confronted with signs, posters and pamphlets demeaning his race or ethnic origin or religion or sexual preference. In this picture, the responsibility for maintaining dignity rests with the individual and not with any state duty to devise rules and regulations to protect it. Some who take this position argue that if the individual feels victimized by expressions of hate directed at the group to which he “willy-nilly” belongs, that is his or her own choice. Waldron’s example is C. Edwin Baker (“Harm, Liberty and Free Speech,” Southern California Law Review, 1997), who writes: “A speaker’s racial epithet … harms the hearer only through her understanding of the message … and [harm] occurs only to the extent that the hearer (mentally) responds one way rather than another, for example, as a victim rather than as a critic of the speaker.” In this classic instance of blaming the victim, the fault lies with a failure of resolve; self-respect was just not strong enough to rise to the occasion in a positive way. Waldron calls this position “silly” (it is the majority’s position in Plessy v. Ferguson) and points out that it mandates and celebrates a harm by requiring victims of hate speech to grin and bear it: “It should not be necessary,” he declares, “for [hate speech victims] to laboriously conjure up the courage to go out and try to flourish in what is now presented to them as a … hostile environment.” The damage, Waldron explains, is already done by the speech “in requiring its targets to resort to the sort of mental mediation that Baker recommends.” To the extent that those targets are put on the defensive, “racist speech has already succeeded in one of its destructive aims.” Notice that here (and elsewhere in the book), Waldron refuses to distinguish sharply between harm and representation. In the tradition he opposes, harm or hurt is physically defined; one can be discomforted and offended by speech; but something more than speech or image is required for there to be genuine (and legally relevant) damage. After all, “sticks and stones will break my bones, but names will never hurt me.” No, says Waldron (and here he follows Catharine MacKinnon’s argument about pornography), the speech is the damage: “[T]he harms emphasized in this book are often harms constituted by speech rather than merely caused by speech.” If the claim were that the harm is caused by speech, there would be room to challenge the finding by pointing to the many intervening variables that break or complicate the chain of causality. But there is no chain to break if harm is done the moment hate speech is produced. “The harm is the dispelling of assurance, and the dispelling of assurance is the speech act.” Waldron knows that the underlying strategy of those he writes against is to elevate the status of expression to an ultimate good and at the same time either deny the harm – the statistics are inconclusive; the claims cannot be proved — or minimize it in relation to the threat regulation poses to free expression. If “free speech trumps any consideration of social harm … almost any showing of harm resulting from hate speech … will be insufficient to justify restrictions on free speech of the kind that we are talking about.” In short, the game is over before it begins if your opponent can be counted on to say that either there is no demonstrated harm or, no matter how much harm there may be, it will not be enough to justify restrictions on speech. If that’s what you’re up against, there is not much you can do except point out the categorical intransigence of the position and offer an (unflattering) explanation of it. Waldron’s explanation is that the position is formulated and presented as an admirable act of unflinching moral heroism by white liberal law professors who say loudly and often that we must tolerate speech we find hateful. Easy to say from the protected perch of a faculty study, where the harm being talked about is theoretical and not experienced. But what about the harm done “to the groups who are denounced or bestialized in pamphlets, billboards, talk radio and blogs? … Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled in a social environment polluted by those materials”? Waldron answers “no,” and he challenges society and its legal system to do something about it. But the likelihood that something will be done is slim if Waldron is right about the state of First Amendment discourse: “[I]n the American debate, the philosophical arguments about hate speech are knee-jerk, impulsive and thoughtless.” Not the arguments of this book, however; they hit the mark every time.

Note: You may want to cut this book!

There are at least two other race-related PICs

Insults PIC. Universities should be allowed to ban racist insults — not all racist speech, just the insults.

Peter Byrne, law professor, Georgetown, 1991, Racial Insults and Free Speech Within the University, 79 Geo. L.J. 399, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2592&context=facpub (1991).

This article examines the constitutionality of university prohibitions of public expression that insults members of the academic community by directing hatred or contempt toward them on account of their race. I Several thoughtful scholars have examined generally whether the government can penalize citizens for racist slurs under the first amendment, but to the limited extent that they have discussed university disciplinary codes they have assumed that the state university is merely a government instrumentality subject to the same constitutional limitations as, for example, the legislature or the police. 2 In contrast, I argue that the university has a fundamentally different relationship to the speech of its members than does the state to the speech of its citizens. On campus, general rights of free speech should be qualified by the intellectual values of academic discourse. I conclude that the protection of these academic values, which themselves enjoy constitutional protection, permits state universities lawfully to bar racially abusive speech, even if the state legislature could not constitutionally prohibit such speech throughout society at large. At the same time, however, I assert that the first amendment renders state universities powerless to punish speakers for advocating any idea in a reasoned manner. It is necessary at the outset to choose a working definition of a racial insult. This definition, however, is necessarily provisional; any such definition implies the writer’s views on the boundaries of constitutionally protected offensive speech, and the reader cannot be expected to swallow the definition until she has had the opportunity to inspect the writer’s constitutional premises. Having offered such a caution, I define a racial insult as a verbal or symbolic expression by a member of one ethnic group that describes another ethnic group or an individual member of another group in terms conventionally derogatory, that offends members of the target group, and that a reasonable and unbiased observer, who understands the meaning of the words and the context of their use, would conclude was purposefully or recklessly abusive. Excluded from this definition are expressions that convey rational but offensive propositions that can be disputed by argument and evidence. An insult, so conceived, refers to a manner of speech that seeks to demean rather than to criticize, and to appeal to irrational fears and prejudices rather than to respect for others and informed judgment.

The complete case for this is laid out quite well in this article and you should read the whole thing (I cut it all in the evidence download) if you want to run the PIC.

Only ban hate speech directed at minority groups, not whites.  This version of the counterplan solves the turns that claim universities will restrict the speech of radical minority professors if speech codes are adopted.

Peter Byrne, law professor, Georgetown, 1991, Racial Insults and Free Speech Within the University, 79 Geo. L.J. 399, http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2592&context=facpub (1991).

Professor Matsuda also argues that only hate speech directed at members of subjugated groups by members of dominant groups forfeits first amendment protection. 56 Thus, while epithets directed at blacks, for example, would be actionable, those directed at whites would not. (Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 MICH. L. REV. 2320 (1989);))

Other Things to Understand About the Topic

I may integrate these into other parts of the essay as I think about them more, but for now I’ll leave them here.

The contemporary state of racism.  As I discussed in point #1, this is a timely topic because this lunatic Richard Spencer is running around the country engaging in racist speech. This is important to know, but it is also important to understand the environment that this speech is occurring in — it is occurring in an environment where self-identified racists, including the Klu Klux Klan, are coming out and endorsing Trump because they think he’s a racist — even though he said, “stop it” and that he rejects the alternative right (I’m not saying that to defend Trump, just to tell you what he’s saying about it). It’s occurring in the context where Steve Bannon, who is the Chairman of Breitbart News, a website that hosts a lot of racist dialogue, is one of the two primary advisors to Trump.   I wrote about this extensively here, and I strongly encourage you to take the time to read it so you have a comprehensive understanding of the context in which the topic is being debated.

While Spencer and his looney make the topic timely, it is not the only contemporary issue.  Here are some other issues that will come up that will help you contextualize the debate and research it

(a) The U.S. Senate last week approved a bill that was advertised as a way to help  the federal government combat harassment against Jewish students on college campuses. But the Anti-Semitism Awareness Act is both unnecessary to achieve its stated goal and fraught with 1st Amendment problems. If it is also approved by the House, President Obama should veto it. (LA Times)

(b)  West Virginia University’s College Republicans hosted Milo Yiannopoulos, technology editor for news and opinion website Breitbart News, on Thursday night to speak on the topic of “What Trump Means.” During his speech, Yiannopoulos used an anti-gay slur to attack a WVU sociology professor, sparking a social-media debate about free speech. WVU President E. Gordon Gee released a statement saying that although he doesn’t support what Yiannopoulos said, he does support free speech. “I will always support the decision to bring a speaker to campus and our community — no matter how controversial. We never want to censor a person’s right to free speech,” he said. “It is through listening to people who think differently from others that we learn about the world and discover who we really are.” (The Exponent Telegram)

(c) But the problem with it (and all such free-speech defenses) is that so many academic officials these days are inclined to say, “Sure, free speech is vital, but . . . ” But it must not make anyone feel excluded; but it must not trigger any harmful emotions; but it must not harass anyone, and so on. With so many voices on campus clamoring for restrictions on speech, the exceptions are swallowing up the rule. Consider, for instance, the nasty incidents at Yale last year, where the university’s president, Peter Salovey, did nothing to defend two members of the Yale community, Nicholas and Erika Christakis, when they were viciously hounded by “progressive” students over the silly matter of appropriate Halloween costumes. (My piece links to a devastating article on that by one of Yale Law’s most famous graduates, Richard Epstein.) (National Review).

(d) When researching, you should note that many articles reference “free speech” in a loose sense and generally talk about speaking on university campuses, including private universities. As noted, private universities are not relevant to your arguments/research


The Supreme Court has said that universities can regulate student speech in school sponsored activities “the style and content of student speech in school-sponsored expressive activities” to the extent necessary to advance “legitimate pedagogical concerns.” Note that this is different from the Richard Spencer case in that the event did not related to a school sponsored activity. This presents a different case area for discussion

Chris Sanders, Alabama Law Review, 2016, 58 Ala L. Rev, Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities https://www.law.ua.edu/pubs/lrarticles/Volume%2058/Issue%201/sanders.pdf, p. 159-60

  1. Introduction

The pierced nipple on the magazine cover started it all. It seems safe to say that when Arizona State University (ASU) President Michael Crow saw an exposed breast on the front of the State Press’ weekly magazine edition in the fall of 2004, he was less than ecstatic. For one thing, a prominent ASU donor had called to complain to Crow about the image, never a comforting prospect for a university president. n4 For another, Crow had made it a priority to clean up his university’s historical reputation as a party school, and a photograph like that in a student publication, even when it accompanied a story about “extreme body piercing,” did nothing to help the cause. Rather than simply complaining to the State Press’ student editors or writing a letter to the editor, however, Crow responded to the picture with a threat to slash ASU’s funding of the newspaper. After months of wrangling between administrators and the paper, the dispute made it all the way to the upper echelons of Arizona government, where a largely symbolic budget provision calling for a ban on state funding of university newspapers was struck down when Governor Janet Napolitano vetoed the budget bill in March 2005 for stated reasons unrelated to the proposed ban. In the end, nothing came of ASU’s threatened funding cut, but the showdown offered one of the latest examples of the growing number of instances in which university administrators have considered using the power of the purse strings to gain greater control of student publications at their institutions. Furthermore, the prospect that such threats to college students’ free speech rights could become widespread and commonplace is far from a theoretical one, which became apparent in early 2006 when the United States Supreme Court opted not to hear an appeal in Hosty v. Carter. That denial of certiorari let stand the opinion of the United States Court of Appeals for the Seventh Circuit that the rule the Supreme Court announced in Hazelwood School District v. Kuhlmeier, which allowed high school officials to regulate “the style and content of student speech in school-sponsored expressive activities” to the extent necessary to advance “legitimate pedagogical concerns,” also may apply at the college and university level. That standard, though well-intentioned, opened the door to a new wave of censorship by secondary school administrators, n12 and the same specter easily could arise for college and university students nationwide if the Court one day applies the Hazelwood standard to those institutions. The precedential backing for Hazelwood’s grant of authority to high school officials to regulate the content of school-sponsored student expression rests primarily in two cases: Tinker v. Des Moines Independent Community School District n14 and Bethel School District No. 403 v. Fraser. The free speech forum analysis so central to Hazelwood, meanwhile, received its best-known Court recognition in Perry Education Ass’n v. Perry Local Educators’ Ass’n. Each of these cases is examined in turn.

  1. School Regulation of Student Speech: Tinker and Fraser Lay the Foundation

Years before Hazelwood, the Supreme Court already had sought to clarify what kinds of student speech deserved protection and under what conditions speech that otherwise would be protected might, instead, be limited. In the 1969 case of Tinker v. Des Moines Independent Community School District, the Warren Court set the bar high for secondary school administrators who wished to regulate students’ political speech. The case arose after three Iowa teenagers were suspended from school after they intentionally violated school policy by wearing black armbands to protest the Vietnam War. n18 The students’ parents then sued on their behalf, alleging a civil rights violation under 42 U.S.C. § 1983 (2000). n19 In a seven-to-two decision, the Court observed that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and found in the students’ favor. After emphasizing that “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate,” the Court held that administrators may limit students’ expressive conduct only if it “‘materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.'”

The Tinker test controlled in high school free speech cases for seventeen years, until the Burger Court’s 1986 decision in Fraser shifted the balance of power back toward administrators. In Fraser, a high school student was suspended for delivering a student government nomination speech that “referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor” during a 600-student assembly attended by students as youngas fourteen. The student challenged his punishment and his father sued on his behalf, claiming, as the petitioners in Tinker had, a civil rights violation under 42 U.S.C. § 1983. The district court ruled in the student’s favor, and the circuit court of appeals found that the student’s speech was “indistinguishable from the protest armband in Tinker” and that the student’s suspension was thus impermissible. n26 The Supreme Court, however, reversed in a seven-to-two decision, finding a “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of respondent’s speech in this case.” Working off the premise that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” the Court held that administrators have the right to reject “vulgar speech and lewd conduct that is wholly inconsistent with the ‘fundamental values’ of public school education.”

  1. Perry and the Elaboration of the Public Forum Doctrine

In addition to the holdings of the student free speech rights cases, the public forum doctrine described in Perry Education Ass’n v. Perry Local Educators’ Ass’n was crucial to the framework that the Court would adopt later in Hazelwood. Drawing on a long line of precedents, the Perry Court recognized three basic classes of speech forums on public property, each requiring varying degrees of governmental interest to justify speech restrictions: traditional public forums, limited public forums, and non-public forums.

Speakers in traditional public forums, such as parks and streets, are afforded the most protection; to limit their speech content, the government must demonstrate “a compelling state interest” and draft a regulation “narrowly drawn to achieve that end.” Citizens receive similar protection in limited public forums like government meetings or theaters; though the government is not obligated to create such speaking opportunities or to keep them open indefinitely, “it is bound by the same standards as apply in a traditional public forum” once it does. On the opposite end of the spectrum is the non-public forum, where the government is much freer to limit the expressive means for which the property can be used, subject only to the requirements that “the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”

To contextualize this in terms of Richard Spencer: His speech occurred in a traditional public forum and was political speech, establishing the most protection under established First Amendment doctrine.

What is hate speech?

Larry Alexander, Banning Hate Speech and the Sticks and Stones Defense, 13 Const. Comment. 71, 73 (1996).http://conservancy.umn.edu/bitstream/handle/11299/167270/13_01_Alexander.pdf?sequence=1 Warren Distinguished Professor of Law, University of San Diego School of Law.Visiting Professor of Law, University of Pennsylvania Law School,

A lot of recent scholarly attention has been focused on these and similar events, most of it concerned with whether and when the first amendment should bar suppression of this “hate speech.”4 In addressing this issue, I, like most of the scholars, shall take “hate speech” to mean epithets conventionally understood to be insulting references to characteristics such as race, gender, nationality, ethnicity, religion, and sexual preference.



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