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

December 10, 2016
Published in Newsletter

Background

Fighting for free speech on America’s campuses.  This August 2016 article covers the general background of the dispute. It’s a good initial read.

Affirmative — General

The coddling of the American mind. This widely read article is written by Greg Lukianoff and Jonathan Haidt. Lukianoff is the director of the Foundation for Individual Rights in Education and the leading proponent of the theory that speech codes wrongly coddle college students. He is also the co-author of, The Shadow University: The Betrayal of Liberty on America’s Campuses and Unlearning Liberty: Campus Censorship and the End of American Debate.. It’s important to read this article to get a full understanding of the basic Affirmative arguments.

The battle against hate speech on college campuses.  This relatively long Newsweek article explores both sides of the controversy but generally argues that there is too much protection for students against offensive speech and is critical of “trigger warnings.”

Campus free speech has been in trouble for a long time.  Written by Lukianoff, this article also makes a general case against university speech codes.

Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities. This article argues universities should not restrict the content of school-sponsored speech, such as school newspapers.

Unlearning Liberty: Campus Censorship and the End of American Debate (Book).

What went wrong? Campus unrest, viewpoint diversity, and freedom of speech. This article takes a critical approach on safe speeches, fear of microaggressions, and general opposition to free speech.

Drop your free speech does. This brief article in the Washington Post argues against free speech codes as violating core elements of free speech.

Four free speech lawsuits in one morning. This article lament so many pubic universities still have unconstitutional free speech codes.

Affirmative — Free Speech Zones

How campus policies limit free speech. This article argues free speech zones limit speech.

Judge Timothy Black opinion.  This is a judicial opinion that argues that a free speech zone on a campus in Ohio violates free speech

Affirmative — Hate Speech

Hate Speech on Campus.  This article, written by the American Civil Liberties Union (ACLU) takes a strong stand against any restrictions on hate speech, arguing that the value of free speech is the best way to promote positive social good and protect rights.  It’s a simple, straight-forward read for those starting on the topic.

Unpleasant Speech on Campus, Even Hate Speech, Is a First Amendment Issue. This article makes a strong case that hate speech should be protected by the First Amendment.

Paternalism, counter speech, and campus hate-speech codes: a reply to Delgado and Yun.  This article makes the case that counter speech is the best response hate speech, not speech restrictions. (gated)

Banning Hate Speech and the Sticks and Stones Defense. The article argues that banning hate speech won’t solve racism and that hate speech isn’t that harmful.  The article goes through different identified harms and responds to each one.

Defending the First Amendment from Antidiscrimination Laws. As the title suggests, the article defends the First Amendment as being more important than anti-discrimination laws based on expression.

Leftist universities will never stop trying to stifle speech. This is a brief article but it makes the point that offensive speech is the speech most likely to trigger social change.

An Examination of University Speech Codes’ Constitutionality and their impact ton high-level discourse. This Master’s thesis is written in strong opposition to speech codes. It does argue that some codes that violate the Constitution likely exist now.

Affirmative — Sexual Harassment

These articles all answer the claim that it is good to limit protected speech to reduce sexual harrassment.

Testimony of the Foundation for Individual Rights.  In this Congressional testimony, FIRE’s Policy Director takes issue with The Office of Civil Rights (OCR’s) enforcement of Title IX in a way that violates free speech rights.

Susan Kruth, SenatorsAsk Key Questions atHearing onCampus SexualAssault,Fᴏᴜɴᴅ. ꜰᴏʀ IɴᴅɪᴠɪᴅᴜᴀʟRɪɢʜᴛꜱ ɪɴEᴅᴜᴄ.:TʜᴇTᴏʀᴄʜ(June30,2014),https://www.thefire.org/senators-ask-key-questions-at-hearing-oncampus-sexual-assault.

Letter fromSenator James Lankford toActing Secretary JohnB.King, Jr.,U.S.Department ofEducation (Jan. 7, 2016), available at https://www.thefire.org/sen-james-lankford-letter-to-the-education-department.

TheHistory,Uses, andAbuses ofTitle IX,Aᴍ. Aꜱꜱ’ɴ ᴏꜰUɴɪᴠ. PROFESSORS (Mar. 24,2016), http://www.aaup.org/file/TitleIX-Report.pdf.

Dept. ofEducationChallenged byFIRE,Coalition about Silence onThreats to StudentRights,Fᴏᴜɴᴅ. ꜰᴏʀ IɴᴅɪᴠɪᴅᴜᴀʟRIGHTSɪɴEᴅᴜᴄ.:TʜᴇTᴏʀᴄʜ(May7,2012),https://www.thefire.org/dept-of-education-challengedby-fire-coalition-about-silence-on-threats-to-student-rights(listingFeministsforFreeExpressionasa member ofthe coalitionchallenging theDepartment ofEducation).

AlexMorey, Strossen PraisesFIREatHarvardFreePressLecture,Criticizes OCRforChilling Speech,Fᴏᴜɴᴅ. ꜰᴏʀIɴᴅɪᴠɪᴅᴜᴀʟRIGHTSɪɴEᴅᴜᴄ.:TʜᴇTᴏʀᴄʜ(Oct.21,2015),https://www.thefire.org/strossen-praises-fire-atharvard-free-press-lecture-criticizes-ocr-for-chilling-speech.

GeorgeF.Will,The legislativeand judicialbranches strike backagainstObama’s overreach,WASH.POST (Feb. 19, 2016), https://www.washingtonpost.com/opinions/the-legislative-and-judicial-branches-strikeback-against-obamas-overreach/2016/02/19/15f403b8-d672-11e5-be55-2cc3c1e4b76b_story.html.

JanetNapolitano, “OnlyYesMeansYes”:AnEssay onUniversityPoliciesRegarding SexualViolence and SexualAssault, 33YᴀʟᴇL.&Pᴜʙ.Pᴏʟ’ʏ 387 (2015), available at http://ylpr.yale.edu/sites/default/files/YLPR/33.2_policy_essay_-_napolitano_final.pdf. 15 Id. at 394–95.

Negative — General

Universities are right — and within their rights — to crack-down on speech behavior. This article defends universities taking a paternalistic approach to speech restrictions on campuses, though it does point out that public universities would not be able to do this under current interpretations of 1A law.

Negative — Hate Speech

Freedom of Expression and Hate Speech. This article makes a strong and thorough case that the Constitution doesn’t exist only to protect free speech but also to protect inequality and that hate speech restrictions are justified for this reason.

The harm in free speech. This New York Times article argues in favor of restricting hate speech because it constitutes a public harm. The author distinguishes this from other speech that merely harms individuals.

Campus Antiracism Rules: Constitutional Narratives in Collision. This article defends hate speech restrictions on campuses.

If He Hollers Let , Him Go: Regulating Racist Speech on Campus. This article defends hate speech restrictions on campuses.

Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation.  This article answers common objections to hate speech regulation.

Burning Crosses on Campus: University Hate Speech Codes. This article offers a general defense of university hate speech codes.

The Neoconservative Case Against Hate-Speech Regulation — Lively, D’Souza, Gates, Carter, and the Toughlove CrowdThis article answers common conservative objections to hate speech regulation.

A Proposal for Regulating Hate Speech in the United States: Balancing Rights under the International Covenant on Civil and Political Rights.  This article argues that hate speech regulation is justified by US commitments under the ICCPR.

Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation.  This article answers common objections to hate speech regulation. It is not specific to universities.

Southern Dreams and a New Theory of First Amendment Legal Realism. This article argues the First Amendment should not be interpreted in a way that protects racism.

The Irony of Free Speech (book). In this book, Owen Fiss, a law professor at Yale, argues that hate speech regulation is justified because hate speech undermines the ability of victims of hate speech to fully participate in the market place of ideas. It essentially defends hate speech regulation from a First Amendment perspective.

Negative — Hate Speech — Counterplans 

Racial Insults and Free Speech Within the University. This article doesn’t argue that all hate speech should be prohibited, just racial insults.  This is a pretty strong PIC for the Negative, as the Affirmative has to defend allowing insults, which most of their defense of even the importance of allowing hate speech wouldn’t assume. The author argues simply that that there is no academic value (truth seeking, humanistic — the purpose of universities) to insulting people, so even if insults are protected speech off campus they should not be protected speech on campus. Also, it is important to note that the article makes strong arguments against regulations of other forms of hate speech.

“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.”

Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2357 (1989). This article argues that hate speech by the majority should be prohibited but that hate speech by the minority should be allowed (Yes, this would send Trump supporters off the deep end). The point of wording a counterplan this way is to get out of the arguments that hate speech codes would be used to suppress radical minority professors.

Affirmative — Websites

Foundation for Individual Rights in Education.  “FIRE’s mission has not changed, but interest from conservative groups has. Conservatives, Mr. Silverglate explained, are “seriously squeezed in the academic world” and finding their causes “suddenly coinciding with our agenda.” FIRE receives funding from groups like the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation and the Charles Koch Institute.” The Atlantic   “Because FIRE plays such an important role in this book, you should know a little about it. Founded by a conservative-leaning libertarian professor at the University of Pennsylvania (Kors) and a liberal-leaning civil rights attorney in Boston (Silverglate), FIRE is a unique organization in which liberals, conservatives, libertarians, atheists, Christians, Jews, Muslims have successfully worked together for the common cause of defending rights on campus. I am a Democrat and an atheist, our senior vice president is a Republican and Christian, while our legal director, a Democrat and former Green Party activist, works harmoniously alongside our other top lawyers including a Jewish libertarian and a Muslim-raised liberal. I have worked at nonprofits almost all my life and have never even heard of, let alone worked at, a cause-based organization successfully run by people with such different personal politics. But we all agree on free speech and basic rights without hesitation, and we live the benefits of having different perspectives in the office every day. True, it can get a little heated in the office around election season, but we wouldn’t have it any other way.” Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (pp. 13-14). Encounter Books. Kindle Edition.

 

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