Professional Documents
Culture Documents
January/February 2017
Lincoln-Douglas Brief
ChampionBriefsInstitute.com
January/February 2017
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Champion Briefs
January/February 2017
To our readers,
The January/February topic consistently becomes my favorite. The countless
opportunities for debate into April if the TOC is your goal provide ample development
of students understanding for topical literature. As a college student living in post-election
America, free speech on campuses feels especially relevant. In this brief, we have carefully
curated arguments that ensure a holistic approach to the topic, invoking historical and legal
context as well as recent news regarding free speech. The affirmative arguments focus on
why unrestricted free speech is necessary for respecting autonomy, ensuring a productive
exchange of ideas, and fighting oppressive structures. The negative arguments center
largely on preventing the harms of unrestricted free speech from overly influencing society
in a negative way. These arguments are all quite nuanced but can be easily adapted. Its
your job to craft cases that best represent your personal values on this issue.
The hypothetical implications of this topic are vast but I strongly recommend that
you avoid abstracting completely from the real-world human impacts. Free speech
regulations, or lack thereof, can impact minorities, social groups, and other individuals in
ways you may not expect. I encourage that you dive into the topic literature to understand
the consequences of speech codes and restricted or unrestricted free speech on college
campuses. This will help you not only learn about the topic, but because many of you will
soon begin your career as a college students, the information will become directly relevant
in the immediate future. I strongly believe that the main implications of arguments can be
connected to our new post-election political climate, impacting you and those around you
quite personally. Understanding the implications of arguments on those it affects and on
society at large will help make debates more relevant and interesting. So, open your mind
to the important issues we face and lets get started on the January/February LincolnDouglas topic!
Champion Briefs
Mitali Mathur
Editor-in-Chief
Lincoln-Douglas Briefs
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Champion Briefs
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Free speech zones chill open discourse outside of the zone by narrowly
constraining means of communication. ................................................................................ 90
A particular issue with free speech zones arises when they require prior
permission to use. ......................................................................................................................... 91
Free speech zones in essence null free speech because they make the
communication barrier impossible to cross. ....................................................................... 92
Free speech zones are a way to silence citizen dialogue and halt the spread of
ideas. .................................................................................................................................................. 93
Difficult interpretations of the First Amendment make free speech zones hard to
adjudicate. ....................................................................................................................................... 94
Eliminate Expenditure Limits Plan .................................................................................................. 95
Expenditure limits aren't substantially related to the school's purpose of
encouraging academic success. ................................................................................................ 96
A2 Expenditure Limits Bad: The school's educational interests outweigh the free
speech interests of student campaigners.............................................................................. 97
A2 Expenditure Limits Bad: Expenditure limits for student campaigns teach
students valuable campaigning and persuasion skills. .................................................... 98
A2 Expenditure Limits Bad: Unlimited spending in student government elections
means that student elections no longer become a learning experience. ................... 99
A2 Expenditure Limits Bad: Unlimited spending in student campaigns undermines
accessibility for low-income students. Student government elections should be
based on thoughtful ideas, not money. ................................................................................ 100
A2 Expenditure Limits Bad: Ninth Circuit case proves--student government
expenditure limits do not violate free speech. .................................................................. 101
A2 Expenditure Limits Bad: Spending caps make the election process better for the
majority of students. .................................................................................................................. 102
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Fighting Oppressive Structures AC ................................................................................................. 103
Free Speech on college campuses is key to challenging US imperialism.................. 104
Free Speech is key to checking oppressive power structures. .................................... 105
Restricting the speech of some is injustice and is oppressive. .................................... 106
Free speech is key to fight back against oppressive governmental tactics to combat
environmental legislation. ....................................................................................................... 107
Universities must be sites of democratic discourse to protect the humanities from
post neo-liberal assault. ............................................................................................................ 108
Violating free speech creates an imbalance in political power. .................................. 109
A2 Free Speech Encourages Minority Discourse: Hate speech undermines the
speech of targeted groups. ....................................................................................................... 110
A2 Free Speech Combats Imperialism: Violations of the First Amendment can be
justified to combat cultural imperialism. ........................................................................... 111
A2 Free Speech encourages activism: The Fear of Violence from Hateful
organizations needs to be reshaped. .................................................................................... 112
A2 Free Speech Reduces Violence: Universities must restrict some speech to
reduce violence placed on the oppressed. .......................................................................... 114
A2 Fighting Oppressive Structures AC: Universities must strike a balance between
absolute freedom of speech and allowing too much restriction- Some moderation
is key. ............................................................................................................................................... 116
A2 Free Speech Combats Racism: To combat racism, we must interrogate what
racism is not focus on free speech. ........................................................................................ 117
A2 Free Speech Combats Antisemitism: Some Restrictions to free speech are
needed to combat antisemitism on campuses. ................................................................. 118
A2 Taking away free speech reduces their effectiveness: Criminalizing descent
only increases their legitimacy. ............................................................................................. 119
A2 Free speech is valuable: Due to a lack of epistemic authority limiting free
speech is justified to curtail speech that is not welfare enhancing. ........................... 120
A2 Limiting Free speech harms democracy: Restricting free speech is beneficial for
improving democracy. ............................................................................................................... 121
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Free Speech Autonomy AC ................................................................................................................. 128
A significant portion of millennials are in favor of certain free speech restrictions.
........................................................................................................................................................... 129
The ability to express is intricately connected to the concept of autonomy,
restrictions of freedom threaten freedom. ........................................................................ 130
The importance of free speech presupposes the protection of free speech even in
the face of harmful speech. ...................................................................................................... 131
Empirical examples (Valdosta State and University of Delaware) show how schools
crush conversation and thus free exchange of ideas before they even occur. ....... 132
A2 Autonomy AC: Majority of students want restrictions to exist on their campus in
regards to slurs, costumes, and other forms of free speech. ........................................ 133
ACLU affirms that defamation laws are ineffective. Speech codes dont help those in
oppressed positions. .................................................................................................................. 134
A law which denies an individual the expression of their views is not consistent
with the doctrine of autonomy. Autonomy is meant to protect to people generally.
........................................................................................................................................................... 135
Democratic legitimacy is dependent of the advancement of autonomy regardless of
the content of the speech because autonomy is dependent on the advancement of
the view. ......................................................................................................................................... 136
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Kant AC ..................................................................................................................................................... 159
Freedom requires public use of one's reason--that's best achieved through
freedom of speech. ...................................................................................................................... 160
Freedom of speech is fundamental to the protection of individual rights. ............. 161
Restrictions on free speech can't be universalized. ........................................................ 162
Free speech is necessary to cultivate our reason. ............................................................ 163
Legalism AC ............................................................................................................................................ 164
International law negates. ....................................................................................................... 165
A2 Hate Speech: Recent SCOTUS cases allow the limitation of some forms of hate
speech that incite violence, such as cross-burning. If it is intimidation or incites
violence, it is not constitutionally protected. .................................................................... 166
John Doe v University of Michigan ruled that despite the harms free speech is
paramount. .................................................................................................................................... 168
The only exceptions to the First Amendment are fighting words-hate speech is
protected. ....................................................................................................................................... 169
Any legal restrictions on libel hate speech are not coherent legal standards. ....... 170
A2 Legalism AC: Hostile Environment laws exist that protect people from bigoted
speech in places like colleges. ................................................................................................. 171
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Marketplace of Ideas AC ..................................................................................................................... 182
Colleges have historically been sites of open debate--this is key to diversity of
thought and expanding people. .............................................................................................. 183
Speech restrictions are on the rise on college campuses. ............................................. 184
Limitations on speech on college campuses are antithetical to the progression of
ideas. ................................................................................................................................................ 185
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Limit on campus speech start us down a slippery slope which implicates the First
Amendment more broadly. ...................................................................................................... 186
The First Amendment embodies the philosophy of the marketplace of ideas. ...... 187
Colleges should be a marketplace of ideas. ........................................................................ 188
Speech codes undermine exploratory thinking. ............................................................... 189
Free speech is the freedom that allows schools to function in the first place. Entire
campuses should be free speech zones. .............................................................................. 190
Speech codes undermine freedom of dissent on campuses. That freedom is
essential to the marketplace of ideas. .................................................................................. 191
Freedom of dissent is essential to the dissemination of ideas. ................................... 192
Colleges are a marketplace of ideas. ..................................................................................... 193
Regulating speech on campuses would deviate from campuses' tradition of being
marketplaces of ideas. ............................................................................................................... 194
First Amendment rights shouldn't be different for colleges. ....................................... 195
Colleges must broadly protect First Amendment rights within the academic
community. .................................................................................................................................... 196
College campuses are a marketplace of ideas--free speech is vital. ........................... 197
Suppressing free speech on college campuses undermines the creative inquiry
which college campuses aspire to. ........................................................................................ 198
Speech restrictions are justified for primary and secondary schools, but not for
mature students in higher education. .................................................................................. 199
College campuses provide an open forum appropriate for the interchange of ideas.
........................................................................................................................................................... 200
Restricting free speech on college campuses produces a chilling effect on academic
freedom. ......................................................................................................................................... 201
Speech restrictions would have a chilling effect--that undermines the marketplace
of ideas. ........................................................................................................................................... 202
The only way colleges and universities will maintain their status as marketplaces
of ideas is if they don't restrict constitutionally protected speech. ........................... 203
Free speech is grounded in the marketplace of ideas. ................................................... 204
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Neoliberalism/Wendy Brown AC .................................................................................................... 219
Focus on language and speech as a space for reducing modes of violence destroys
hard fought for coalitional politics. ....................................................................................... 220
Focus on individualized notions of pain and aggrievement through forms of
representation recreates a form of neoliberalism, masking social inequity. ......... 222
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Slippery Slope AC .................................................................................................................................. 254
It is our moral imperative to uphold freedom of speech Bans create racial
discrimination and force compliance with US views on international relations. . 255
The institution of speech restrictions stifles social change and damages the
entirety of American Democracy. .......................................................................................... 257
Even when Speech equality is difficult, Criticisms generated through Free Speech
can correct those broader institutions through change. ............................................... 258
Despite any flaws, Free Speech is still inseparable from every successful social
movement that was critical to progressive change. ........................................................ 259
A2 Safe Space AC: Free Speech zones are insufficiently sized and used to be
effective Inconvenient time frame for reservation ensures they are underused.
........................................................................................................................................................... 260
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Appeals to the First Amendment aren't inherently wrong, but the First Amendment
is not always the appropriate reference point. ................................................................. 293
First Amendment jurisprudence is inherently self-defeating. This doesn't mean
speech is never valuable, but that we can't insulate speech from risk by expecting
it to be safeguarded constitutionally. ................................................................................... 294
Free speech is conceptually impossible--ideological constraints are constitutive of
speech. ............................................................................................................................................ 295
Universities have the right to restrict speech--students can always choose colleges
with more speech protections. ............................................................................................... 296
College students don't get their education through free and open debate--they get
it from teachers who control the content--means pedagogical ends precede speech.
........................................................................................................................................................... 297
Speech codes are key to treating college students as they are: children. ................ 298
Free speech isn't absolute--it necessitates a balancing test. ........................................ 299
Ban Hate Speech CP ............................................................................................................................. 300
A2 Hate Speech DA: Prohibition of Hate Speech increases the underlying attitudes
by increasing the haters sense of exclusion. ...................................................................... 301
A2 Legal prohibitions of hate speech ruin platforms to fight hate speech from. .. 302
A2 Ban Hate Speech CP- Bans force hate speech underground, undermines
coalitions against racist attitudes. ......................................................................................... 303
Banning Hate Speech only makes sense in context of how it affects others in
society. ............................................................................................................................................ 304
A2 Hate Speech CP: Majority of People dont believe in speech prohibitions. ....... 305
US is behind other countries on limiting hate speech. International contracts also
support it. ....................................................................................................................................... 306
Majority of college students believe hateful speech should be limited. ................... 307
Speaking up isnt enough to change actions, counter speech is futile in the case of
deeply seeded hateful attitudes. ............................................................................................ 308
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Critical Race Theory NC ...................................................................................................................... 316
A2 More Discourse Remedies: Remedies that contain a more speech aspect are
ineffective deterrents to action. ............................................................................................. 317
A2 Harmlessly blow off steam: The connection between hate speech and violent
action is undeniable, language has material and concrete effects. ............................ 318
A2 Reverse Enforcement: The empirical evidence of using hate speech codes
against marginalized groups is lacking. In fact, most of the regulation of hate
speech prevents victimization. ............................................................................................... 320
A2 Free Speech Helps Marginalized Groups: The history of the application of the
First Amendment and its doctrinal exceptions proves that the first amendment has
long been a tool that those with power benefit from. ..................................................... 321
A2 More Speech is Key: More speech is often unsafe for the victim of the recipient
of hate speech, making the possibility for education impossible. .............................. 323
A2 Hate speech distracts from "real" oppression: Language constructs reality, so
hate speech codes are an effective way to dissociate PoC from harmful stereotypes
that attack their personhood. ................................................................................................. 324
Hate speech codes are effective--other Western democracies prove. ...................... 325
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Hate Speech DA ...................................................................................................................................... 335
Anti-Semitism is at a decade long high on campuses, and is growing resulting in
vicious physical attacks and glorifying murder. ............................................................... 336
Hate speech promotes violence by encouraging a culture of the other. ................... 337
The tone hate speech carries makes it inherently harmful based on the intent to
use it. ............................................................................................................................................... 338
Hate speech can be a way to silence those you wish to harm. ...................................... 339
A2 Hate speech DA: Free speech, even when harmful serves a purpose. The
banning of one can spill over to harm others. ................................................................... 340
A2 Hate Speech DA:There have been zero legal applications of fighting words to
hate speech meaning that hate speech is currently protected by the Supreme
Court. ............................................................................................................................................... 341
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A2 Hate Speech DA: Symbols of hate are protected by the constitution. This
includes flags and clothes as long as it is not damaging someone elses property.
........................................................................................................................................................... 342
Governmental obligations are to ensure a respectful culture, hate speech harms
respect. ........................................................................................................................................... 343
Western politics has a history that supports the obligation to protect those from
harms like the ones implicated in hate speech. ................................................................ 344
Minority students are not enriched by opposing opinions when those opinions are
hate speech. ................................................................................................................................... 345
Hate speech is an assault of the 4th Amendment. ............................................................ 346
Anti-Semitic hate speech is largely present today, particularly on college
campuses. ....................................................................................................................................... 347
Hate speech and fighting words are synonymous, both are meant to cause harm
and incite a reaction. .................................................................................................................. 348
The internet has super charged hate speech on college campuses, making it more
easily spread. ................................................................................................................................ 349
Allowing hate speech to persist infringes on the rights of faculty and students on
campus, causing daily fear. ...................................................................................................... 350
Allowing hate speech to persist infringes on the rights of faculty and students on
campus, causing daily fear. ...................................................................................................... 351
Hate speech is highly prevalent and under reported on college campuses. ........... 352
Hate speech lead to a myriad of negative effects which harm the students
education. ...................................................................................................................................... 353
Internet has proliferated hate speech on college campuses, empirics prove. ....... 354
Hate speech is statistically very prevalent on college campuses. ............................... 355
Anti-Muslim rhetoric on the internet linked to hate crimes in real life. .................. 356
Anti-Muslim rhetoric on the internet linked to hate crimes in real life. .................. 357
Hate speech has been emboldened on college campuses ever since Trumps victory.
........................................................................................................................................................... 358
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Hate Crimes are in the high hundreds on college campuses (and these are only the
federally repored ones). The most common include graffiti, assault, and
intimidation. ................................................................................................................................. 359
Race is nearly always the motivating factor for hate crimes on college campuses.
........................................................................................................................................................... 360
The US is behind on regulating hate speech per international codes. ...................... 361
Silencing certain speech on campus turns the campus into a political showdown
instead of a place of education and debate. ....................................................................... 362
Hate speech is intrinsically tied to the harm and devaluation of others. ................ 363
Epithets draw on historically sensitive stereotypes that can elicit emotional or
mental distress. ............................................................................................................................ 364
Hate speech can cause long term harm-even chills victims own speech. ................ 365
The damage by hate speech has significant harms in relation to dignity. ............... 366
Universities are particularly bad place to harbor hate speech given the transition
state students are in. .................................................................................................................. 367
Hate speech is the intersection of free speech and equality rights. ........................... 368
Majority of students want open learning environments and bans on hate speech
and slurs. ........................................................................................................................................ 369
AFF: Free speech empowers minorities--it shouldn't be restricted. ......................... 370
A2 Hate Speech DA: Hate speech doesn't contract others' formal autonomy,
whereas speech restrictions do violate formal autonomy. ........................................... 371
A2 Hate Speech DA: Neg burden is to prove that restrictions on hate speech will be
enforced effectively. ................................................................................................................... 372
A2 Hate Speech DA: Hate speech regulations are ineffective. ...................................... 373
A2 Hate Speech DA: Hate speech regulations could result in more racism longterm. ................................................................................................................................................ 374
A2 Hate Speech DA: Empirics are key. .................................................................................. 375
The normalization of hate speech within culture paints certain individuals as outgroups that can justify further oppressive policies. Nazi Germany proves. ............ 376
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UNIQUENESS: Hate Speech and Crime associated with it, is at an all time high with
the election of Donald Trump. ................................................................................................ 397
Link: On campus speech restrictions are essential to mitigate oppressive
rhetorical and physical violence against marginalized groups taking that away
further entrenches oppression. ............................................................................................. 398
Impact: Unchecked Hate Speech inevitably leads to physical violence and attacks.
........................................................................................................................................................... 399
A2 They Can Protest Back: Protests on Race are not afforded the same protections
as white protests, and often end in physical violence and hate crimes. ................... 400
Link: The moderation of free speech by administration is essential to mitigate
compounding anti-semetic harassment on campuses. .................................................. 401
White supremacist groups are gearing up for verbal attacks of minority groups on
campuses across the US, causing a spillover to violence. .............................................. 402
Hate Speech is on the rise since Trumps election, as groups weaponized his
rhetoric across the US. ............................................................................................................... 403
A2 Women Hate Speech: The concept of gender justice. ............................................... 404
Hate groups are growing, and attackers are being emboldened to attack college
campuses more and more. ....................................................................................................... 405
Hate Speech on and off campuses are connected in rhetoric and violencefailure to
censor on campus leads to a spillover everywhere. ........................................................ 406
A2 Inclusion: Attempting to reconcile hate speech, leads to higher tuition spikes,
further burdening marginalized groups. ............................................................................ 407
A2 Hate Speech Leg is key: Hate Speech laws are subjective and entirely ineffective
banning phrases or arguments can be used by all political spectrums. ................ 408
A2 Laws Key: Hate Speech laws are subjective and entirely ineffective banning
phrases or arguments can be used by all political spectrums. .................................... 409
A2 Constitution: Restrictions are worth fighting forhate speech violates
educational rights and provokes violent attacks. ............................................................ 410
A2 Constitution: First Amendment protections do not extend to minority groups in
a way that equally protects their education Power is inherently imbalanced. .. 411
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A2 Does Not Lead to Violence: Over 10 percent of all hate crimes take place on
college campuses, and they are connected to hate speech. .......................................... 412
A2 Most Campuses Dont Have Hate Speech Codes: Hate Speech codes of conduct
are abundantly more restrictive than normal legislation requirements across the
US. ..................................................................................................................................................... 413
A2 Hate Speech leads to Violence: Hate Speech, specifically on campuses, never
spills over to violence towards those effective It actually happens to the speaker.
........................................................................................................................................................... 414
A2 Hate Speech Ban Solvency: Even if we could measure the subjective concept of
offense, it is impossible to protect it in a legislated framework. ................................ 415
A2 No Impact: There is an educational tradeoff Hate Speech is forcibly sponsored
through university funds, where it could otherwise be invested. .............................. 416
A2 Racism: Speech Codes entrench more subtle forms of racism while taking away
critical tools in identifying bigoted speech. ....................................................................... 417
A2 Racism: A focus on structural racism is mutually exclusive from individual
speech codes Allowing ourselves to get bogged down in free speech ensures
racism continues unfettered. .................................................................................................. 418
A2 Racism: Free speech is able to solve back for racist behavior individuals
should be socially punished instead of silenced before they speak for their racism.
........................................................................................................................................................... 419
A2 Racism: The defense of racism is a societal problem Pushing it under the rug
simply holds back a complete criticism of white fascist defense. ............................... 420
Habermas NC ......................................................................................................................................... 421
Hate speech preempts the ability for agents to be in an equal position discursively.
Rather than mutual respect, it confers a status of sub-humanity enhanced by the
powerless position of marginalized groups within society. ......................................... 422
A2 Marketplace of ideas: Racism acts at the level of the unconscious distorting the
marketplace of ideas, creating a process defect. .............................................................. 424
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Power works through our linguistic tools and categories. Those who inhabit
subordinate positions effectively become powerless and unable to participate in
the marketplace of ideas. ......................................................................................................... 426
Racist speech devalues the speech of other participants in the discourse that exist
on the margins of society. ......................................................................................................... 427
A2 Marketplace of ideas: Racist speech decreases the amount of speech that
reaches the market. .................................................................................................................... 428
Hate speech is a performative utterance that reformulates the speakers' positions
on a continuum of power. ......................................................................................................... 429
A2 Hinders communication: Racist epithets are not a form of genuine speaking,
meaning that hate speech regulation does not violate the communicative
processes at the center of the First amendment. ............................................................. 430
Hate speech prevents the ability to reach mutual recognition and public
consensus. Instead, it invites less discourse. ..................................................................... 431
A2 Habermas: Any conception of the good life or stance of morality in Habermas is
essentially non-normative, which mean it can never provide a complete
prohibition on any particular content of speech. ............................................................. 433
A2 Habermas 2. Habermas concedes that inequality in distribution of resources
and knowledge is inevitable, meaning limitations of hate speech can't be justified
under his approach. .................................................................................................................... 434
Nussbaum's capabilities approach provides a democratic justification for free
speech but a reciprocal limitation that free speech ought not violate the
capabilities of others, justifying regulation of hate speech. ......................................... 435
A2 Imposes normative conceptions onto discourse: This is simply not true- hate
speech imperils the normative dimension of discourses. ............................................. 437
Safe Space NC ......................................................................................................................................... 438
A2 Safe Spaces Improve students ability to create change. ......................................... 439
Safe Space NC TURN: Contradictory ideas are key to reimagining educative safety.
........................................................................................................................................................... 440
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Safe Space NC TURN: The discourse of the powerful is necessary for new narratives
to emerge. ...................................................................................................................................... 441
A2 Safe Spaces protect students from harassment. ......................................................... 442
Safe Space NC TURN: Safe Spaces render experiences of other students invisible.
........................................................................................................................................................... 443
A2 Safe Spaces solve harassment- Safe Spaces give the harassers safe spaces where
by fixing the root problems becomes impossible. ........................................................... 444
A2 Safe Spaces benefit LGBTQ people: Safe spaces otherize GLBTQ people instilling
fear in the dominant- Only prolonged discomfort can create greater acceptance.
........................................................................................................................................................... 445
A2 Safe Space Solvency: Safe Spaces fail to benefit those who truly need them. ... 446
Safe spaces instill democratic values that are key to positive change. ..................... 447
A2 Safe Spaces are key to change: Classroom civility is whats needed not safe
spaces. ............................................................................................................................................. 448
A2 Safe Spaces Address LGBTQ issues: Safe spaces normalize the white
heteronormative order. ............................................................................................................ 449
A2 Safe Spaces Help Women: Safe Spaces cause a loss of generations capable of
helping rape victims. .................................................................................................................. 451
A2 Safe Spaces Improve Free Speech: Safe spaces represent the biggest threat to
free speech. .................................................................................................................................... 452
A2 Safe Spaces spur change: Safe spaces undermine our ability to effect change in
the world a total rejection is necessary to restore academic freedom. .................... 453
A2 Safe Spaces Bring People together: Safe Spaces stifle discussions and bring
people apart. ................................................................................................................................. 455
Safe Spaces are key for allowing people of color to combat microagressions--this is
empirically proven to increase retention. .......................................................................... 456
Safe Spaces are key to unlearning preconceptions and expand students ability to
question. ......................................................................................................................................... 457
Latino Safe spaces are key to improving graduation rates for Latinos and
improving identity understandings. ..................................................................................... 458
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Safe spaces dont prevent challenging discussions rather they allow students to
explore and reconseptualize new concepts. ...................................................................... 459
Safe Spaces are justified because hateful speech that they elevate doesnt deserve
protection. ..................................................................................................................................... 460
Safe Spaces require a restriction of free speech and allows a better exposing to
new ideas. ...................................................................................................................................... 461
Safe Spaces help students feel a sense of belonging. ....................................................... 462
Safe class rooms are key to the success of multicultural courses which allow
transformative learning. ........................................................................................................... 463
Safe multicultural classes confront stereotypes and motivate students to make
social change. ................................................................................................................................ 464
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Lincoln-Douglas Brief
Topic Analyses
January/February 2017
speech zones, and controversial speakers at universities have all been subject to hot contestation.
The importance of schools is evident: college and university classrooms are, as Firmin
DeBrabander notes, a laboratory where controversial, sometimes incendiary ideas are aired.1
Campuses are viewed as a place where young people can develop into thinkers that will spark
social progress and make real change. For example, Henry Giroux (citing Henry Conant), argues
that higher education should create a class of American radicals, who could fight for equality,
favor public education, elevate human needs over property rights and challenge groups which
have attained too much power.2
In this topic analysis, Ill cover a few things. First, I will discuss what the topic actually
covers: what is within the purview of the topic, and what are topicality constraints that the
affirmative faces? Then, I will discuss the core affirmative positions in the literature and
potential negative objections. Finally, I will go over a few of the core negative arguments and
some affirmative responses to those.
Firmin DeBrabander, Do Guns Make Us Free? Democacy and the Armed Society (New Haven: Yale University
Press, 2015), 174.
2
Henry Giroux, Higher Education and the Promise of Insurgent Public Memory, Truthout, 3 Mar 2015,
http://www.truth-out.org/news/item/29396-higher-education-and-the-promise-of-insurgent-public-memory.
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What does the topic mean?
The topic has several phrases with ambiguous meaning. I will discuss what the topic means by
public colleges and universities, constitutionally protected speech, and any.
Public Colleges and Universities
There are two important parts of this phrase. First and foremost is that the topic is limited
to public colleges and universities. This clearly is just meant to exclude private schools.
However, it has some interesting impact on the topic: public universities are undeniably bound to
follow the First Amendment. The Foundation for Individual Rights in Education makes this
clear:
That the First Amendment applies on the public university campus is settled law.
Public universities have long occupied a special niche in the Supreme Courts First
Amendment jurisprudence. Indeed, the Court has held that First Amendment
protections on campus are necessary for the preservation of our democracy.3
This opens the debate up to more well-defined and one-sided constitutionality discussions. With
private universities, the answer may be less obvious. However, since the topic specifies public
universities, it seems obvious that the affirmative has the upper hand with respect to
constitutionality.
Second, colleges and universities are bare plurals. That is, they are plurals without
modifiers (other than public, in this case). Since the resolution has no specific context, some
might interpret these to be generic, meaning that they apply to kinds of things instead of
particulars. If this interpretation is correct, then the affirmative is not allowed to specify
State of the Law: Speech Codes, FIRE, accessed 2 Dec 2016, https://www.thefire.org/in-court/state-of-the-lawspeech-codes/.
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particular colleges or universities to defend. I wont go into this issue much further, but Jake
Nebel and Bob Overing have both written about topicality and plurals in debate resolutions
(Nebels article led to the argument now known as Nebel T).45
Constitutionally Protected Speech
This is potentially the most interesting topicality discussion on the topic. What constitutes
constitutionally protected speech is, of course, always changing as the Supreme Court makes
new rulings on the First Amendment. However, the core issue in the topic will be about hate
speech: is hate speech constitutionally protected? What is hate speech? Ill try to make a little
headway on these questions here.
First, fighting words and hate speech are distinct things. Fighting words are certainly
not protected by the constitution, as the ACLU notes:
The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New
Hampshire, that intimidating speech directed at a specific individual in a face-toface confrontation amounts to "fighting words," and that the person engaging in
such speech can be punished if "by their very utterance [the words] inflict injury or
tend to incite an immediate breach of the peace." 6
Hate speech, on the other hand, is far more controversial. Some, like CNNs Chris
Cuomo, think that hate speech is not covered by the First Amendment. However, there does not
seem to be much constitutional basis for this assertion. PolitiFact explains that hate speech on
Jake Nebel, Jake Nebel on Specifying Just Governments, VBriefly, 19 Dec 2014,
http://vbriefly.com/2014/12/19/jake-nebel-on-specifying-just-governments/.
5
Bob Overing, Topicality and Plans in LD: A Reply to Nebel, Premier Debate Today, 11 Dec 2014,
http://premierdebatetoday.com/2014/12/11/topicality-and-plans-in-ld-a-reply-to-nebel-by-bob-overing/.
6
Hate Speech on Campus, ACLU, accessed 2 Dec 2016, https://www.aclu.org/other/hate-speech-campus.
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its own -- such as on a picket sign or a blog -- is not excluded from protection. 7 Either way,
both sides should be prepared to have this debate. Affirmatives should decide early on whether
or not they are willing to defend hate speech. If they are, they should have a defense of it; if not,
they should have an argument for why hate speech is not constitutionally protected free speech.
Similarly, the neg should be ready to go with an argument that the aff must defend hate speech
since it is constitutionally protected.
Any
This is potentially the most frustrating word in the topic. Merriam-Websters first
definition of it is:
1: one or some indiscriminately of whatever kind:
a: one or another taken at random <ask any man you meet>
b: every used to indicate one selected without restriction <any child would
know that>8
It seems, then, that this any does mean something like every in this instance. However, that
would not mean that the resolution is saying that colleges could restrict some, but not every
instance of free speech. Rather, the topic intuitively seems to be saying that colleges cannot
restrict any free speech; there should be no restrictions on constitutionally protected speech.
The implication of this is obvious: plans are not topical. There also seems to be an
obvious argument for plans not being allowed on this topic regardless of whether the word any
was in the topic. If the affirmative were allowed to say colleges should not restrict some
specific instance of constitutionally protected speech, then they would pick absurd, unbeatable
7
Lauren Carroll, CNN's Chris Cuomo: First Amendment doesn't cover hate speech, PolitiFact, 7 May 2015,
http://www.politifact.com/punditfact/statements/2015/may/07/chris-cuomo/cnns-chris-cuomo-firstamendment-doesnt-cover-hate/.
8
Definition of Any, Merriam-Webster, accessed 2 Dec 2016, https://www.merriam-webster.com/dictionary/any.
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affs. For example, people would read plans like Public colleges and universities in the United
States ought not restrict students right to write papers on Kant. Or Colleges shouldnt restrict
students right to say racism is bad. All of these would, if the aff could specify one sort of
speech, be theoretically defensible plans. However, they are clearly terrible for debate: they
would force the negative into an awful position and give them no educational ground to debate
about. For this reason, I will focus my discussion in the next two sections on affirmatives that
defend the whole resolution.
Affirmative
In this section, Ill outline a few core affirmative positions and how they could interact
with potential negative arguments. As I mentioned above, the affirmative will have to decide
between defending hate speech as constitutionally protected speech or defending against a
topicality argument claiming that hate speech is constitutionally protected. Regardless of whether
they defend hate speech or not, though, these are a few viable, core of the literature affirmative
positions.
Freedom
The first, and potentially most obvious, affirmative on this topic is one that simply says
freedom of speech is inviolable. William Ruger defends this position, arguing that freedom of
speech is necessary to respect human rationality, autonomy, and dignity:
At its most fundamental level, free speech is our natural right to express ourselves,
consistent with the equal rights of others to do so. Protecting this right respects the
moral dignity of individuals as reasoning, autonomous beings with their own ideas,
beliefs and values. This means that speech should not be restricted, even when we
think it is wrong or dangerous. When we vociferously disagree with someone and
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willingly engage them in a dialogue, we actually reveal our deepest respect for their
dignity as reasoning beings.9
This position could fit within some sort of Kantian deontological framework.
Helga Varden, for example, describes a Kantian case for free speech:
Kant maintains that most ways in which a person uses words in his interactions
with others cannot be seen as involving wrongdoing from the point of view of right:
such things as merely communicating his thoughts do not constitute
wrongdoing because it is entirely up to them [the listeners] whether they want to
believe him or not (6: 238). The utterance of words in space and time does not
have the power to hinder anyone elses external freedom, including depriving him
of his means. Since words as such cannot exert physical power over people, it is
impossible to use them as a means of coercion against another.10
I strongly caution against reading this argument with a Kantian framework without fully
understanding it, though, as Varden also writes about Kant being used to condemn hate speech
and defamation. Even if this argument is not defended using a purely Kantian political
philosophy, though, it could be defended with a libertarian framework that has become popular
in recent years or even a constitutionality argument. The affirmative could just argue that we are
ethically obligated to follow the Constitution, and the Constitution obviously calls for protection
of constitutionally protected speech!
Framework-style positions like this tend to be successful in front of judges that are
sympathetic to evaluating framework over utilitarian/policy-style impacts or critical impacts.
Since it is January/February, my prediction is that these judges are more likely to be found at
Northeast tournaments like Harvard and Lexington.
9
William Ruger, Free Speech Is Central to Our Dignity as Humans, Time, 3 June 2016,
http://time.com/4355651/free-speech-human-dignity/.
10
Helga Varden, A Kantian Conception of Free Speech, in Freedom of Expression in a Diverse World, ed.
Deirdre Golash (New York: Springer, 2010), 42.
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There are two potential strategic disadvantages to a position like this, though. First, it
does not have a built-in defense against common negative arguments about hate speech and safe
spaces. Second, many frameworks like Kant and constitutionality are susceptible to critiques
about their historically racist legacies. Of course, it is possible to overcome both of these
difficulties, but they are definitely something that debaters should be thinking about when they
write the position.
Marketplace of Ideas
Another popular argument for free speech on college campuses is that social progress is
impossible without a marketplace of ideas. In this marketplace, any person would be able to
freely state and debate their opinions. William Ruger, for instance, defends this argument:
[P]ositive social changeas well as moral and scientific progressis more
difficult without the free flow of ideas that free speech allows. Repressive societies,
by squelching speech, impair peoples ability to improve those
societiesAmericans ability to confront the evil of slavery was set back in the
1830s and 40s Congress by its gag rule on debate of anti-slavery petitions.
Conversely, freer speech in the 1950s and 60s helped civil rights advocates bring
down Jim Crow.11
This argument could be spun in many interesting ways. For example, the affirmative
could use the examples of slavery abolition and the civil rights movement could only be broken
down with the help of free speech on college campuses. As I mentioned in the introduction,
Henry Giroux and Firmin DeBrabander write about the importance of college campuses for
starting movements. This affirmative, then, likely goes best with some sort of consequentialist
framework. This could either be a stock utilitarian one or a structural violence-type framework
11
William Ruger, Free Speech Is Central to Our Dignity as Humans, Time, 3 June 2016,
http://time.com/4355651/free-speech-human-dignity/.
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that has become incredibly popular in recent years (which argues we should minimize
oppression).
This aff also has some nice strategic merits. It has a good built-in response to a core neg
argument: hate speech. The ACLU argues that restrictions on hate speech on college campus
also will always restrict protests, and that laws protecting hate speech can also be used to drive
movements for civil rights:
[L]aws that defend free speech for bigots can be used to defend the rights of civil rights
workers, anti-war protesters, lesbian and gay activists and others fighting for justice. For
example, in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an
ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in
that case became the basis for the ACLU's successful defense of civil rights demonstrators
in the 1960s and '70s.12
This affirmative would be especially useful in front of judges who are sympathetic to
policy-style positions and positions about structural violence. In my experience, these judges are
common at tournaments like Harvard-Westlake, Emory, and Berkeley on the January/February
topic.
Negative
The nice thing about being negative on this topic (except for the longer speeches!) is that
the negative can win by proving a single counter-example or reading a PIC (plan inclusive
counterplan, which defends part but not all of the affirmative). As I noted above, this is because
the affirmative must defend that there shouldnt be any restrictions on constitutionally protected
speech on college campuses. Thus, if the negative simply proves that, for example, hate speech is
12
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constitutionally protected and should be restricted, then they win. In this section, Ill discuss the
core counter-example in the literature: hate speech.
Hate Speech
It shouldnt be surprising that this is the core of negative ground on the topic. The most
contentious portion of the debate in the literature is over hate speech: should it be allowed on
college campuses? If it should be regulated, how do universities do so without chilling other
speech?
Several authors have defended limitations on hate speech on college campus. Charles
Lawrence, for example, wrote an article that prompted great debate over whether regulating hate
speech was an unacceptable form of censorship (Lawrence argued in favor of regulating hate
speech).13 The argument for regulating hate speech is intuitive: hate speech causes direct harm,
and regulating it would deter hate speech, ameliorating that harm. However, many, against
Lawrence, argue that regulation would do more harm than good. Overall, this argument seems to
be an empirical question, so both sides should be prepared to engage in an empirical debate
about the issue, as C. Edwin Baker notes:
Given these alternative empirical possibilities, the debate is not between idealistic
but uncaring liberal defenders of free speech and fierce opponents of the worst
forms of racism. Rather the pragmatic debate is about different empirical
predictions concerning the most effective strategy for opposing racism. Empirical
evidence of which scenario is most likely should be welcome. Maybe the evidence
exists, thought I do not know of it at a level where confidence on a particular
conclusion is warranted.14
13
Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, Duke Law Journal
(1990): 431-483.
14
C. Edwin Baker, Hate Speech and Incitement to Violence (Web, Columbia University School of Law, Spring
2009), 13.
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The negative could read this argument with a variety of different frameworks. One would
simply be an argument about the value of democratic deliberation. This could be drawn from the
works of Jean-Jacques Rousseau, Jurgen Habermas, Seyla Benhabib, or countless others, and
would argue that inclusion in democratic deliberation is a moral imperative: if speech excludes
someone, that justifies restricting it. John a. Powell makes this argument in the context of free
speech:
The marketplace of ideas cannot self-regulate so long as objections to lack of
participatory access are subsumed by claims that the liberty interest in expression
is primary to the equality interest in participatory access. A self-regulating
marketplace presupposes an equal starting line- an assumption that has never been
a reality in American political life.15
Another obvious framework for this position would be one based around
structural violence, which would argue that we should attempt to reduce oppression. If
hate speech is an act or manifestation of structural violence/oppression, then, we should
limit it.
The more framework-style version of this position (the one centered around democracy)
could be especially useful at January/February tournaments like Harvard and Lexington, where
many judges will be somewhat framework-focused. The structural violence version of this
argument could be more useful at tournaments like Berkeley, where the judges tend to be more
critical and policy-centered. Either way, this is a core negative argument that can be used to
interact with a litany of different affirmative arguments.
15
john a. powell, As Justice Requires/Permits: e Delimitation of Harmful Speech in a Democratic Society, Law &
Inequality 16, no. 97 (1999), 103.
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Good Luck!
Bennett Eckert
About Bennett Eckert
As a student at Greenhill, Bennett was a 3-time champion of Lincoln Douglas Debate at
the Texas Forensic Association State Tournament and the 2016 National Speech and Debate
Association's national champion. During the 2015-2016 school year, Bennett was one of the
most successful debaters on the national circuit winning the Glenbrooks, Apple Valley, St.
Marks, Meadows, the Greenhill Round Robin, and the Apple Valley Round Robin. He now
attends Northwestern University.
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Works Cited
Baker, C. Edwin. Hate Speech and Incitement to Violence. Web, Columbia University
School of Law, Spring 2009.
Carroll, Lauren. CNN's Chris Cuomo: First Amendment doesn't cover hate speech. PolitiFact.
7 May 2015. http://www.politifact.com/punditfact/statements/2015/may/07/chriscuomo/cnns-chris-cuomo-first-amendment-doesnt-cover-hate/.
DeBrabander, Firmin. Do Guns Make Us Free? Democacy and the Armed Society. New Haven:
Yale University Press, 2015. 174.
Definition of Any. Merriam-Webster. accessed 2 Dec 2016. https://www.merriamwebster.com/dictionary/any.
Giroux, Henry. Higher Education and the Promise of Insurgent Public Memory. Truthout. 3
Mar 2015. http://www.truth-out.org/news/item/29396-higher-education-and-the-promiseof-insurgent-public-memory.
Hate Speech on Campus. ACLU. accessed 2 Dec 2016. https://www.aclu.org/other/hatespeech-campus.
Lawrence III, Charles R. If He Hollers Let Him Go: Regulating Racist Speech on Campus.
Duke Law Journal (1990): 431-483.
Nebel, Jake. Jake Nebel on Specifying Just Governments. VBriefly. 19 Dec 2014.
http://vbriefly.com/2014/12/19/jake-nebel-on-specifying-just-governments/.
Overing, Bob. Topicality and Plans in LD: A Reply to Nebel. Premier Debate Today. 11 Dec
2014. http://premierdebatetoday.com/2014/12/11/topicality-and-plans-in-ld-a-reply-tonebel-by-bob-overing/.
powell, john a. As Justice Requires/Permits: The Delimitation of Harmful Speech in a
Democratic Society. Law & Inequality 16. no. 97 (1999). 97-151.
Ruger, William. Free Speech Is Central to Our Dignity as Humans. Time. 3 June 2016.
http://time.com/4355651/free-speech-human-dignity/.
Varden, Helga, A Kantian Conception of Free Speech, in Freedom of Expression in a Diverse
World, edited by Deirdre Golash. New York: Springer, 2010. 42.
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of the most important topics. There are many local tournaments on this topic and national circuit
tournaments that include Harvard Westlake (Octos bid), Berkley (Octos bid), Harvard (Octos
bid), Sunvitational (Quarters bid), and Emory (Octos bid). Harvard Westlake, Berkley, and
Emory tend to be more policy-oriented, while Harvard and Sunvitational tend to be more
philosophically oriented. Most tournaments on this topic are some of the last few qualifying
tournaments for the TOC, state, or district tournaments. The Jan/Feb topic is also the TOC and
NDCA topic. If the TOC is your goal, you will be living, breathing, and living by this topic
through April. Overall, since there are so many tournaments on this topic, its sure to be a fun
topic! Seize the time you have during winter break to do some good research, card-cutting, and
case-writing.
Background
This topic is very pertinent in our current political climate. In general, there is a big clash
in the literature about whether free speech should be restricted. On one side, people argue that
free speech should be an absolute right, and on the other, people argue that restrictions are
necessary to prevent harmful speech. Since this topic refers to colleges and universities in the
US, the topic presents a question of whether colleges should ensure unrestricted rights to speech
versus restricting speech so that students feel safe and comfortable. In the status quo, colleges
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and universities restrict free speech in various ways, such as when they create safe zones where
microaggressions are not allowed, or implementing policies where professors cant say certain
things or have to change their syllabi.16 Colleges often use speech codes, a university
implemented policy that prohibits the expression that would be protected by the First
Amendment in society at large.17 Speech codes have spread to more and more campuses given
the surge of political correctness culture.
When thinking about the topic, it is easy to jump to ideal conclusions regarding the nature
of free speech in the US. But given the new political climate, which was exacerbated during the
election, the impacts of speech are very clear. Debaters should ensure they remember who would
be affected by changes in speech rules: students and the public who speak on campuses. Putting
a face to the impact will help make the topic more real and will ensure that the lived experiences
of people with different identities can be heard and respected.
With that in mind, lets start with some definitions.
Public Colleges and Universities refer to institutions of higher education that are funded
by public means through the national or subnational government.18,19 In this resolution, it is
important to note that public colleges and universities are the actors this means that they are the
ones that implement speech policies, not the government. However, I do think that if some
debaters want to defend a national policy, they can argue that colleges and universities ought to
abide by a national policy, which would in turn remove restrictions on free speech. Additionally,
some debaters may parametricize specific colleges and universities but if you want to do that,
16
Nina Burleigh, "The Battle against 'Hate Speech' on College Campuses Gives Rise to a Generation that Hates
Speech," Newsweek, May 26, 2016
17
Foundation for Individual Rights in Education, "What are Speech Codes?"
18
The Legal Dictionary, Colleges and Universities.
19
Peterson's, "Public University vs. Private College," September 29, 2015
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be ready to debate OSPEC and/or Nebel T (the argument that colleges and universities are bare
plurals).20
Ought implies a moral obligation, and there are different definitions outlining whether it
means debaters should focus on implementing a policy or discussing the resolution on an abstract
level.
Restrict is defined as to limit the amount or range of (something); to prevent (someone)
from doing something; to allow (someone) to only have or do a particular thing.21
Any can be defined in two different ways, implying two different resolutional
interpretations. The first definitional approach defines any to indicate a person or thing that is
not particular or specific.22 This would mean that the aff cannot defend a plan that removes
restrictions on a particular type of free speech, but must defend removing every restriction on
free speech. The second definitional approach claims that any is used instead of some for
saying or asking whether there is a small amount of something or a small number of people or
things.23 This would mean that for the aff, colleges ought not restrict some types of free speech,
which means the aff can parametricize what types of speech that would be.
Constitutionally Protected Speech is the right, guaranteed by the First Amendment to the
U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.24
The key word is constitutionally. Constitutionally protected speech already implies certain
limitations defined by the Supreme Court: freedom of speech does not include the right to incite
actions that would harm others (Schenck v. United States), make or distribute obscene materials
20
Jake Nebel, "Jake Nebel on Specifying 'Just Governments,'" Vbriefly, December 19, 2014
Marriam Websters Dictionary, Restrict
22
Marriam Websters Dictionary, Any
23
MacMillion Dictionary, Any
24
The Legal Dictionary, Constitutionally protected speech.
21
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(Roth v. United States), burn draft cards (United States v. OBrien), etc. This means that
affirmatives that wish to remove a restriction speech must check that it isnt a restriction that
would be allowed under the constitution, or else the aff is the same as the status quo.
This topic is fundamentally about whether or not some limitations on constitutionally
protected speech are legitimate in colleges. Should college be a place where full speech thrives
and a marketplace of ideas can flourish, or a place with some restrictions that ensure the safety
and respect of students affected by unrestricted speech. There are many different interpretations
of the resolution that allow for different parametricizations or are important to keep in mind
while writing cases and topicality arguments.
Affirmative
Aff Strategy
There are a variety of affirmative strategies on this topic ranging from philosophical affs
to critical affs. I recommend that you begin constructing your aff case by broadly researching the
topic literature, and keeping in mind the core negative argument of hate speech. This will ensure
that you construct your aff with built-in answers, which will make your 1AR much easier. Below
are a few advantage areas Affs can cover.
Advantage areas
1] Freedom and Constitutionality: The most intuitive argument on this topic is an aff that
an unrestricted right to free speech is absolute, and restrictions violate that right. Greenwalt, for
example argues that free speech is intertwined with liberty.25 Debaters can read this type of an
25
Kent Greenawalt, "Free Speech Justifications," Columbia Law Review, Volume 89, Number 1, January 1989
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affirmative with a deontic framework or a constitutionality framework and argue that speech
codes violate the inviolable right of free speech individuals have.
2] Marketplace of Ideas: A different twist on the freedom case idea is to emphasize that
unrestricted free speech is necessary to include voices, and is the basis for democracy. Affs can
argue that restrictions on free speech create a chilling effect that disincentives people from
voicing their opinions since they are scared of violating a speech code, or dont know what
constitutes violating a speech code.26 Removing restrictions on free speech would create a
marketplace of ideas by including voices and promoting academic freedom.27 These affs could
also argue that the answer to hate speech, is more speech that inclusion is a necessary precursor
to resolving the tensions that created the need for a speech code.28 These affs would work well
with a democracy based framework and would be great for local tournaments.
3] Movements: This aff is very similar to the marketplace of ideas aff, but the impacts are
different. Instead of simply arguing that unrestricted free speech is good on principle for
including voices, a movements aff would argue that unrestricted free speech is necessary to fight
dominant power structures. I can see this aff being very popular as a soft-left aff with a
structural-violence based framework. This idea could also work well with more critical
frameworks and more specific issues like fighting capitalism, racism, and sexism.
4] Paternalism: Another interesting, potentially critical aff could argue that whenever
institutions have the ability to arbitrarily determine limitations on speech (the ability of colleges
to write speech codes), they exemplify paternalism by forcing particular views on people, which
26
Conor Friedersdorf, "The Glaring Evidence that Free Speech is Threatened on Campus," The Atlantic, March 4,
2016
27
James Leonard, "Killing with Kindness: Speech Codes in the American University," Ohio Northern University
Law Review, Volume 19, 1993
28
Charles R. Calleros, "Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and
Yun," Arizona State Law Journal, Volume 27, 1995
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could also lead to backlash.29 This could work well with slippery slope arguments that claim
when colleges have the power to violate one part of the Constitution, they could begin to violate
other parts as well.
Overall, there are a variety of different affirmative positions that can be read regardless of
your debate style.
Negative
Neg Strategy
There are a variety of different negative positions on this topic. I recommend that all
debaters have different types of cases in their arsenal to counter different affs as the topic
proceeds to ensure the best clash.
Negative Cases
Hate Speech NC: The biggest negative ground on this topic is to argue that speech codes
and restrictions on free speech are necessary to prevent hate speech. I can see this argument
being read with a structural-violence based framework that describes the oppressive nature of
hate speech and hate crimes sparked by unrestricted free speech. I also think this argument can
be run with a deliberation based framework to argue that hate speech excludes certain
populations from important discussions they have a right to participate in. This could be strategic
against affirmatives that argue more speech is the solution to bad speech since the negative
would claim being able to speak in the first place is a pre-requisite to the aff, and speech codes
29
James Leonard, "Killing with Kindness: Speech Codes in the American University," Ohio Northern University
Law Review, Volume 19, 1993
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allow that to occur.30 31 Every negative should have a version of a hate speech NC or write it as a
disadvantage.
Counterplans
There are plenty of Plan Inclusive Counterplans on this topic for affs that defend
completely unrestricted free speech. You can PIC out of a particular type of speech (ex: hate
speech) and argue that certain speech codes are necessary to resolve the harms in the aff. A
negative can also read a safe zones counterplan, which would allow for unrestricted free speech
everywhere except certain areas where people who feel antagonized go to seek haven and can
reflect in a facilitated dialogue where their views will be respected. A surge of these safe
spaces has occurred following the recent election.32
Disadvantages
The hate speech NC can be read as a disadvantage with impacts relating to bullying and
violence. These disadvantages simply need links about why hate speech will escalate into
tangible harms against oppressed groups. Another potential DA could argue that colleges ought
to adopt speech codes that exclude radical and extremist thought in order to prevent college
students from becoming involved with terrorist organizations.33
30
Owen M. Fiss, "Free Speech and Social Structure," Iowa Law Review, 1986
Susan J. Brison, "The Autonomy Defense of Free Speech," Ethics, Volume 108, Number 2, January 1998
32
Bradford Richardson, "'Safe Spaces' Balloon on College Campuses Following Donald Trump Win," The
Washington Times, November 10, 2016
33
Rupert Sutton, "Preventing Prevent? Challenges to Counter-Radicalisation Policy on Campus," The Henry
Jackson Society, 2015
31
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Kritiks
I think the most common kritiks that will be run on this topic will argue from a ruse of
solvency perspective. In a world with unrestricted free speech, minorities and under-represented
groups will still be overpowered and efforts to spur a revolution will be placated because
colleges think they have solved the problem.34 I also think there will be kritiks read against
abstract affs that argue for principles of freedom and autonomy, or kritiks that criticize the
authors of very philosophical arguments in favor of protecting the inviolability of autonomy
Concluding Thoughts
Overall, I am very excited for this topic as I think it is very relevant. I think regardless of
your debate style or whether you compete on the local, state, or national circuit, you will find
positions that can be run. Depending on your opponent, the judge, and tournament, you should
be ready to debate different types of positions. Especially given that the topic starts after winter
break, you have more free time to get ahead with preparing for tournaments.
Good luck!
Mitali Mathur
34
Tariq Khan, "Masking Oppression as Free Speech: An Anarchist Take," The Hampton Institute: A working-class
think tank, November 10, 2015
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About Mitali Mathur
Mitali competed in LD for 4 years at Greenhill School with success on the local, state,
and national level. She qualified to the Texas Forensics Association debate tournament three
times, placing third her junior and senior year. Over her debate career, she cleared at national
tournaments including St. Marks, Grapevine, Meadows, Glenbrooks, Isidore Newman, and
Emory. She also qualified to the TOC her junior and senior year. Mitali was honored to be a
member of the USA Debate Team, through which she placed second in the Harvard Westlake
Tournament and Holy Cross Tournament, won the Blake Tournament, and the team placed 10th
in the world at the World Schools Debating Championship held in Singapore. She currently
attends the School of Foreign Service at Georgetown University.
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Works Cited
Brison, Susan J., "The Autonomy Defense of Free Speech," Ethics, Volume 108,
Number 2, January 1998
Burleigh, Nina, "The Battle against 'Hate Speech' on College Campuses Gives Rise to
a Generation that Hates Speech," Newsweek, May 26, 2016
Calleros, Charles R.,"Paternalism, Counterspeech, and Campus Hate-Speech Codes: A
Reply to Delgado and Yun," Arizona State Law Journal, Volume 27, 1995
Fiss, Owen M., "Free Speech and Social Structure," Iowa Law Review, 1986
Foundation for Individual Rights in Education, "What are Speech Codes?"
Friedersdorf, Conor, "The Glaring Evidence that Free Speech is Threatened on
Campus," The Atlantic, March 4, 2016
Greenawalt, Kent, "Free Speech Justifications," Columbia Law Review, Volume 89,
Number 1, January 1989
Khan, Tariq, "Masking Oppression as Free Speech: An Anarchist Take," The Hampton
Institute: A working-class think tank, November 10, 2015
Leonard, James, "Killing with Kindness: Speech Codes in the American University,"
Ohio Northern University Law Review, Volume 19, 1993
MacMillion Dictionary, Any
Marriam Websters Dictionary, Restrict
Marriam Websters Dictionary, Any
Nebel, Jake, "Jake Nebel on Specifying 'Just Governments,'" Vbriefly, December 19, 2014
Peterson's, "Public University vs. Private College," September 29, 2015
Richardson, Bradford, "'Safe Spaces' Balloon on College Campuses Following Donald
Trump Win," The Washington Times, November 10, 2016
Sutton, Rupert "Preventing Prevent? Challenges to Counter-Radicalisation Policy on
Campus," The Henry Jackson Society, 2015
The Legal Dictionary, Colleges and Universities
The Legal Dictionary, Constitutionally protected speech
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in the literature. This discussion centered around hate speech and pornography in the early 90s,
but has expanded to include a broader discussion embodied in college speech codes. This topic
appears to be very narrow: there is little flexibility for affirmative advocacy choice. However, a
scan of the literature reveals that there are diverse justifications for both sides.
Interpretational Issues
Public
Public here clearly refers to universities or colleges (hereafter I will simply use college
to refer to both) that are predominately funded by the state. This shouldnt carry much
ambiguity, as a simple google search will yield whether or not a college is considered a public
university. However, it is important to note that affirmatives can defend the right of private
institutions to restrict speech. Thus, the affirmative can argue that public institutions are an
extension of government and can employ justifications centered around the specific duties of the
government (e.g. Legitimacy).
Universities and colleges
While it appears obvious, the specification of universities and colleges as the actor of
the resolution carries a significant importance. Oxford English Dictionary defines university as
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[a]n educational institution designed for instruction, examination, or both, of students in many
branches of advanced learning, conferring degrees in various faculties, and often embodying
colleges and similar institutions. Similarly, college is defined as an educational institution or
establishment, in particular. The key nuance here is that the resolution refers to the institutions
not the individual actors within those institutions. As such, one could argue that the resolution
only pertains to college-wide policy designed to prevent or punish certain speech. This would
exclude the actions of individual classrooms from consideration. Thus, a teacher could still
punish racist speech used by a student by giving the student a failing grade. This seems to have
intuitive grounding: in class discussions you can argue what you want, but the teacher gets to
decide what academic standard it merits. For the teacher, a racist comment may be no different
than the poorly justified comment: both do not meet the teachers academic standard.
Any
I am confident that almost everyones initial interpretation of this word is that the
resolution compels the affirmative to defend all constitutionally protected speech. I would not be
surprised, however, if debaters tried to defend an interpretation of any that included plans. For
example, Oxford dictionary defines any as used to refer to one or some of a thing or number
of things, no matter how much or how many. This definition appears to allow specification
given the wording some, but this definition refers to the use of any as a pronoun or determiner.
The resolution, however, uses any as an adverb: any modifies the adjective constitutionally
protected. Alternatively, Oxford dictionary defines any when used as an adverb as (used for
emphasis) at all; In some degree. Still, in some degree can create the ambiguity that can be
construed as a justification for plans.
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Given that this is the TOC topic and the communitys strong favor for plans, it is
definitely quite plausible that debaters will successfully justify an interpretation of any that
includes plans. Albeit counter-intuitive to its common usage, debaters would simply need to
employ theoretical (pragmatic) justifications for plan debate. Such would mirror the classic bare
plurals debate. However, the defense of plans against bare plurals could employ a criticism of
Nebels assumption of what it means to be topical.35 As such, I believe the any topicality
debate will be more difficult than the bare plurals debate.
Constitutionally protected speech
Constitutionally protected speech clearly refers to the First Amendment. But there is
room for other constitutional concerns to factor in. For example, a court may rule that the
Fourteenth Amendment concern regarding particular speech conflicts with and contextually
trumps the First Amendment. In this circumstance, one view might argue that the speech is
protected by the First Amendment but not constitutionally protected. Another view could also
easily say it would not be protected under the First Amendment in any meaningful sense.
Luckily, debaters do not have to be concerned over which view is correct: since in both cases
speech is not constitutionally protected.
There are two ways to approach defining constitutionally protected speech. First,
debaters can define it intensively. Intensional definitions define a term by specifying the
necessary and sufficient conditions for the terms use. For example: a bachelor is an unmarried
man. Alternatively, debaters can define it extensionally. Extensional definitions list everything
35
Overing, Bob. Topicality and Plans in LD: A Reply to Nebel by Bob Overing. Premier Debate. Web.
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that fall under that definition, i.e. they are the specific cases that an intensional definition
implies.36 To under the distinction consider the following two affirmative cases:
1. The state has a moral obligation to unconditionally obey the constitution. Public
universities are an extension of the state and therefore they ought not restrict any
constitutionally protected speech.
2. Current precedent established by the supreme court says that constitutionally protected
speech is x, y and z. Hate speech is not protected. x, y and z are valuable for public
universities and should not be restricted.
The main difference is that while case #1s justification does not depend on what is determined
to be protected by the Supreme Court. By extension then, case #1s justification also justifies the
extensional definition. Case #2 is different: it might not support the resolution if hate speech
were protected. Perhaps the impacts of hate speech outweigh the speech that is valuable. Thus,
defending the intensional definition commits the affirmative to defend much more than the
extensional definition. More specifically, it requires affirmatives defend the resolution even with
changes in Supreme Court precedent. With a vacant supreme court justice and an incoming
Trump presidency one can see how that precedent might turn for the worse. Of course, those
defending the intensional definition can simply argue that a change will not occur: this reduces
the scope of the affirmatives advocacy to a link debate. Whether the affirmative should opt for
the link debate or topicality debate will depend on their justification and the community norm
that develops around this issue.
36
Thank you to Marshall Thompson for explaining the difference between intensional and extensional definitions.
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Possible Affirmative Advocacies
Government Legitimacy
The most common argument for the affirmative in the literature centers on Government
Legitimacy. This argument is common for a reason: it has the best grounding and a strong
supporting intuition. These positions can be grouped into three main contention level arguments:
1. Freedom
This should be obvious: the First Amendments fundamental principle is freedom. There is a
deep tradition of justifying the imperative of freedom of speech. Any justification of autonomy
from Kant to democratic theory should provide a robust defense of freedom of speech. The
trouble will be explaining why certain forms of protected speech do not qualify as violation onto
another that can be restricted. Charles Fried offers a potential explanation. He argues:
It is central to the idea of a fundamental right to liberty that no one should curtail the liberty
of another when the only reason is disagreement about another's conception of the good.
State regulation of unwelcome expression is the punishment of pure ideas or beliefs in
a free, just society (a liberal society) no one may be compelled to adopt or to deny any
particular theory of the good...37
Alternatively, Helga Varden defends free speech from the Kantian tradition. She argues that
communication does not exert any external force since whether or not someone chooses to act is
entirely up to him or her.38
2. Content Neutrality
Another important issue with restriction of speech in college is the focus on content. Commonly
cited in the literature is that colleges restrict speech offensive to minority groups but not those
37
Fried, Charles (1992) "The New First Amendment Jurisprudence: A Threat to Liberty," University of Chicago
Law Review: Vol. 59: Iss. 1, Article 9.
38
Varden, Helga. A Kantian Conception of Free Speech, AMINTAPHIL: The Philosophical Foundations of Law
and Justice: Vol. 3, pp 39-55.
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against white heterosexual men. This may seem trivial: there are obvious reasons why minority
groups need special protections. However, some argue this is in tension with fundamental
principles of democracy. As Fried argues:
The ideas the universities condemn are false and offensive, but the universities do not
condemn all false and offensive ideas Individuals within the community may not
espouse some forms of race and gender superiority, but may espouse others none of these
codes would condemn burning the American flag, even to affront a gathering of veterans
or the widows and orphans of soldiers killed in battle. This discrimination makes clear
that those who promulgate these regulations assign to themselves the authority to determine
which ideas are false and which false ideas people may not express as they choose some
of the proponents of these codes scorn the idea of content neutrality.39
The intuition is simple: the government should not be in the business of determining what ideas
are correct.
3. Slippery Slope
The last argument is an extension of #2. Government should not be in the business of
determining what ideas are correct. Not only does it contradict key democratic principles, but it
also can lead to dangerous consequences. For example, if the state can define what hate speech
is can it not be used to define radical black authors like Wilderson as hate speech against whites?
For example, Friedersdorf argues that Michigans speech codes were used to accuse and punish
black students.40 Furthermore, censorship should not become a solution to problems. For
example, Kelly Sarabyn argues that speech codes in Canadian universities contributed to making
censorship an accepted solution to problems.41
39
Fried, Charles (1992) "The New First Amendment Jurisprudence: A Threat to Liberty," University of Chicago
Law Review: Vol. 59: Iss. 1, Article 9.
40
FRIEDERSDORF, CONOR. "The Lessons of Bygone Free-Speech Fights." The Atlantic. Atlantic Media
Company, 10 Dec. 2015. Web.
41
Sarabyn, Kelly. "The Slippery Slope of Suppressing Speech - FIRE." FIRE. N.p., 19 Feb. 2014. Web.
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Confronting language rather than avoiding it
Many critical scholars argue that avoiding offensive language is counterproductive. They
maintain censorship create bubbles that provide the illusion of protection. A prominent author in
this direction is Judith Butler. In her book Excitable Speech, Butler argues that speech must be
confronted to be transformed.42 Building a position around Butlers argument allows the
affirmative to impact turn common disadvantages of the negative.
Henry Giroux argues that creation of safe spaces is harmful to critical pedagogy. He
argues that learning should be unsettling and should include thinking outside the boundaries of
established ideologies.43 Similarly, Wendy Browns argues that the domain of free public
speech is not one of emotional safety or reassurance.44 Of course, Girouxs argument is not as
radical as Butlers. Defending this line of argument would require that the affirmative de-link
hate speech from its protections (see topicality section).
Another angle the affirmative can explore is to simply argue that censorship leads to a
backlash that is counterproductive. For example, Strossen argues that censorship glorifies racist
speakers and mask the problem.45
Possible Negative Advocacies
Constitution Kritik
Since the affirmative advocacy is directly tied to constitutional protections, the negative
has strong ground criticizing the constitution. For example, Gillborn argues that the narrative that
42
Butler, Judith. Excitable Speech: A Politics of the Performative. New York: Routledge, 1997. Print.
Evans, Brad, and Henry A. Giroux. "The Violence of Forgetting." The New York Times. The New York Times, 20
June 2016. Web.
44
Free Speech is not for Feeling Safe, by Wendy Brown. UC Berkley Faculty Association. Oct. 2014. Web.
45
Strossen, Nadine. Regulating Racist Speech on Campus: A Modest Proposal? Duke Law Journal, vol. 1990, no.
3, 1990, pp. 484573. www.jstor.org/stable/1372555.
43
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speech doesnt hurt anyone underlies normalization of racial stereotypes that undermine
education of black students.46 Combining specific links like this with a broader critique of the
constitution can create a good generic strategy that can give the negative a reliable option to uplayer. Charles Mills The Racial Contract is a good source for a critique of the constitution. He
argues that color-coded morality of the Racial Contract restricts the possession of this natural
freedom and equality to white men. In other words, contracts like the constitution give the
illusion of neutrality but exists to codify white privilege.47 This position would work well with
the hate speech disadvantage: the 2NR can use the disadvantage to help demonstrate (and win)
the link story.
Hate Speech Disadvantage
Countless authors argue that there is no hate speech exception to the First Amendment.
For example, in R.A.V. v. City of St. Paul the Supreme Court ruled that the citys ordinance was
unconstitutional and implied that hate speech was a protected category of speech.48 Similarly, the
court also ruled University of Michigans speech codes unconstitutional in Doe v. University of
Michigan.49 The key to making this a strong generic will be creating a nuanced impact story. The
negative should clearly impact how hate speech affects minorities. Furthermore, negatives
should explore the implications hate speech have for the principles affirmatives defend: is hate
speech consistent with principles of freedom? Does it harm the virtuous development of
students? These nuanced impact stories should give the negative access to any affirmative
46
Gillborn, David. Risk-Free Racism: Whiteness and So-Called Free Speech. Wake Forest Law Review 44
Wake Forest L. Rev. 535. Summer, 2009.
47
Mills, Charles. The Racial Contract, Cornell University Press; First Paperback edition (June 25, 1999), pgs. 1217
48
Volokh, Eugene. "No, Theres No hate Speech Exception to the First Amendment." The Washington Post. WP
Company, 7 May 2015. Web.
49
Hudson, David. "Hate Speech & Campus Speech Codes." First Amendment Center. N.p., 13 Sept. 2002. Web.
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criterion. For example, Weberman argues that hate speech undermines the market place of ideals,
which might help negatives answer affirmatives centered on the democratic spread of ideals.50
One excellent source for impacts is Words that wound: Critical race theory, Assaultive Speech,
and the First Amendment by Matsuda, Lawrence and Delgado.51
College as a site of virtue inculcation
Colleges are different from the state. Of course, they are both public actors, but colleges
arguably have specific obligation towards the educational development of students. These
specific obligations are likely found by analyzing the initial justification for public colleges. Why
should the state be involved in setting up (funding) educational institutions at the university level
in the first place? Virtue ethicist might argue that it is to help the virtuous development of its
citizens.52 As such, a paternalistic justification can be made that supports restricting speech. Eric
Posner hints at this idea: he justifies restriction of speech with the idea that teaching needs to
balance education concerns that even college students are still like children in moral
development.53
Concluding Thoughts
This topic will be unfamiliar for many debaters. It is narrow in advocacies but diverse in
principles. As such, this topic will place less emphasis on collecting a large number of cards and
50
Weberman, Melissa. University Hate Speech Policies and the Captive Audience Doctrine, Ohio Northern
University Law Review 36 Ohio N.U.L. Rev. 553. 2010.
51
Matsuda, M.J., C.R. Lawrence III, R. Delgado, K. W. Crenshaw. (1993). Words that wound: Critical race theory,
Assaultive Speech, and the First Amendment. 49821st Ed. Boulder, CO: Westview Press.
52
Homiak, Marcia, "Moral Character", The Stanford Encyclopedia of Philosophy (Fall 2016 Edition), Edward N.
Zalta (ed.)
53
Posner, Eric. "Colleges Need Speech Codes Because Their Students Are Still Children." Slate Magazine. N.p., 12
Feb. 2015. Web. 06 Dec. 2016.
(NOTE: Posner does say that if public colleges do not restrict speech it would resolve concerns of libertarians and
concludes that only private colleges should restrict)
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empirics, and more on quality and coherence of explanation. This topic analysis has touched on
what I think are the promising arguments on the topic. But I encourage you to dive in much
deeper and read surrounding literature. The more you understand relevant analogies, examples
and principles the more successful you will be.
Good luck!
Felix Tan
About Felix Tan
Felix Tan debated four years at Clements High School (TX). During his career, he
reached elimination rounds at nearly every national invitational he attended, including Greenhill,
Glenbrooks, Strake, and Meadows. In his senior year, Felix was a finalist at the TOC. He
currently attends Oxford University.
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pedagogy lens while also correcting for perceived imbalances in the resolution. While the issue
of free speech on college campuses is hotly contested and an excellent topic for debate, many
including myself feel that the wording of the resolution and the structure of debate in general are
inadequate in truly engaging the issue. Aside from issues of performance and agency (which will
be discussed), college free speech is an ongoing debate in the courts and the literature. The
nascent nature of the topic means that the literature is likewise new, evolving, and unstable.
Debaters must make due by modifying their construction and strategy habits to take advantage of
the scholarship.
There are several focal points of free speech debates that this paper will focus on, using them
as a common theme when outlining competition-ready arguments. Issues discussed include:
Court doctrine, student voices, case studies, and policymaking. Discussing these issues from
their various epistemologies reveals starting points for framework and developing offense. After
framing the debate from the research perspective, this paper offers outlines for critical and policy
arguments for each side.
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Literature Review & Division of Ground
The central tenet of debating college free speeches is to start with the voices themselves
college students.54 Such an examination will give insight into how policy and critical scholars
construct their arguments. Broadly speaking, students themselves are fiercely divided on the
issue.55 While a near overwhelming majority of college students agree that open learning
environments are more important than restricting free speech, most agree that specific derogatory
terms and slurs can and should be restricted.56 This is where clash is generated. First, students
cant agree on what counts as a slur.57 This opens interesting ground for discussion about tone
policing and violent language. Second, what are the exact grounds for restricting any form of
speech anyway? The Constitutionally Protected Speech part of the resolution muddies the
answer because it isnt clear what constitutes hate speech or the precedent for limitation at least
not directly in the context of the college environment. At best the constant shifting in forms of
rhetorical violence means that the court must continually adapt. The lesson to be drawn is that
how college students speak matters; not only because of the threat of direct interpersonal
violence but as well because speech sets the standard for legislative and judicial decisions.
The paradox between students who both reject and accept limitations on speech also offers
insight into researching arguments for position. On one hand, values of deliberative discourse,
54
While college students are undoubtedly the majority of speakers on college campuses, public universities and
colleges are constitutionally prohibited from preventing the public from entering campus spaces and
speaking as well. Thus, restrictions on college campuses apply to both college students and to those
members of the public who wish to speak on college campuses.
55
Nick Anderson. 2016. Washington Post - https://www.washingtonpost.com/news/gradepoint/wp/2016/04/04/survey-college-students-seek-balance-on-free-speech-and-hatespeech/?utm_term=.16bbbc8e2905
56
Ibid.
57
Ibid.
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individual liberty, and public goods all seem to justify unmitigated right-to-speech.58 On the
other side, social justice epistemologies, the reality of psychological trauma, and subjective
moralities invite limited restrictions to free speech.59 Regardless of the different debate
paradigms one might use - truth-seeking, policymaking, and critique ample moral and ethical
justifications exist for both sides of the debate to begin framing off. This should serve as a
reminder to address the resolutional issue directly when opening research on the topic.
College free speech also seems a fitting debate topic because of its presence in
policymaking.60 The very scholarship meant to record the argue the issue of campus speech
rights has now presented itself in the US legislative discourse.61 It seems that this debate has
become unavoidable at the national level, with watchdogs reporting 1st amendment violations on
a majority of US college campuses.62 Not only are congresspeople debating the philosophical
merits of the issue, they are also seeking to define the issue and its terms.3 While the issue of the
constitution obviously necessitates policy-centric arguments, the way that legislators discuss and
act on the issue presents ground for fiat-ing government action. Being able to link the scholarship
examining college free speech fights to that literature used at the policy level will also make for
contextual and nuanced debates as a whole.
It is worth examining the constitutional issue at hand what rights does a college student
have for free speech? The ACLU explains three basic principles to follow in relation to the law.
First, what youre saying cant be restricted, but how you say it can.63 Second, free speech is
58
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equally available to all persons in the US regardless of any identifying factors whatsoever.5
Third, you must obey local ordinances and observe regulations.5 Clearly, the issue of free speech
on campus relates to principle number three public institutions can set ordinances regulating
speech. This not only bolsters the idea that this resolution will be a policy debate, but identifies
the burden of the debate. Because the resolution uses the word any, then the affirmative must
defend unlimited 1st amendment speech, and may only defend limits on speech barred by the
constitution. Thus, the negative must either defend current limitations or advocate for the plan
minus X number of restrictions.
This brief review of the literature and public discourses on campus free speech should have
revealed a few key factors in researching the resolution. First, finding the arguments starts with
looking at the voices of college students. Second, the literature is rife with various common
moral and ethical perspectives. Third, the debate absolutely merits a national level policy
discussion. Finally, the burdens for the debate are set by defining constitutionally protected free
speech and any.
Affirmative Arguments
Overview
The affirmatives role, as stated, is to unconditionally defend free speech. This means that
the 1AC plan must always defend the resolution in its entirety, regardless of its legal form. In
this sense, the 1ACs scholarship is bound to draw upon the voices of students opposed to safespaces and other restrictions when constructing arguments. As mentioned, students advocating
for unlimited speech believe the open learning environment should be the priority. That means
any value used and all offense claimed must inherently appeal to this maxim. The advocacy of
free speech by students is characterized by a striving desire for open horizons. Most feel speech
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restrictions on campuses are contradictory with the value of transparent education.64 These
feelings felt across the country fomented with a class action lawsuits by students at three
Midwestern and one Californian university in 2014.65 This event proved to be turning point in
the national dialogue, with increasingly large and open advocacies for 1st amendment defense.
While statistics on exact feelings vary, many polls where misleading in concluding students
wanted speech bans in large numbers.66 Given that the largest and most pertinent voice on the
issue is calling for open learning environments, 1AC construction should be revolve around this
advocacy.
Traditional 1ACs
This paper highly recommends those aiming for some iteration of a V/VC affirmative
appeal to either public goods or individual morality as values. Defending the university as a
public good entails a notion of open access to learning and interaction. Arguing the university
should be kept open and confrontational allows affirmatives to claim offense off deliberative
democracy and public pedagogy. Defending the right to free speech from an individual
standpoint is also a ready option. Affirmatives that value individual liberty should frontload
framing and impacts as to why inalienable speech rights are a prerequisite to every other right.
Policy 1ACs
Plans defending the right to free speech will likely claim the same offense as a traditional
1AC deliberative democracy and public pedagogy. Keeping in mind the overall goal of an open
64
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learning environment, plans should propose specific mechanisms to ensure compliance and
prevent encroachment on free speech. This can include monitoring, modifications to the code of
federal regulations, and grant conditions. The idea is to bolster traditional offense by using a
specific legal procedure to guarantee solvency and solve negative offense. The advantages to
using mechanisms like monitoring or legal modifications is that the affirmative has stronger
grounds to defend their epistemology and circumvent noncompliance or blurring arguments.
Kritikal 1ACs
There are a few nuanced ways to claim critical offense of unmitigated free speech. The
first is call-out culture literature, which advocates occupying and disrupting public spaces to
speak out against specific forms of oppression whether the audience likes it or not. The second
is silencing literature, which argues that restrictions on free speech disproportionately impact
oppressed groups and are meant to allow white and masculine voices to fill remaining spaces.
Victim silencing in particular might be an effective device for a Kritikal 1AC drawing upon the
necessity to speak out and the resistance to domination examined in the two above theories. A
capitalism critique is by far the most intuitive route for the affirmative, with swathes of literature
arguing for individual expression against capitalism and its spaces.
Negative Arguments
Overview
The negatives established role in the free speech debate is to defend or propose just one
single restriction as morally good. This means the negative should start by looking for impacts
that have moral considerations that override constitutional ones. The negative must then also
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examine what exactly constitutes such an extenuating circumstance. Based on the literature
discussed, these instances would be ones that in essence are hate crimes but definitionally are not
since thats the precedent for restricting speech.67 Exploiting definitional differences of what
the resolution prevents from being restricted perhaps offers the best negative strategy. Another
framing issue for free speech is the exact role of the constitution in regulating. In other contexts,
some posit that explicit appeals to the constitution are bad modes of administering rights because
they cant account for complex legal situations.68 Some legal experts argue that its the exact
subjectivity of rhetorical violence on campus combined with the inadequacy of the constitution
that provide incentive not to delimit free speech.69 Views of many college students seem to
affirm this notion, as many believe there are various instances that justify restriction but elsewise
allow overwhelmingly free speech.70
Theory
Topicality is an extremely persuasive argument on this resolution. First, every debater
should have Public and Any 1NCs. Poorly constructed 1ACs might allow for some
restrictions, or may talk about private universities. These are easy targets for T proficient
negative debaters. A Constitutionally protected speech T is more nuanced, presenting the
negative the opportunity to argue that a form of speech the 1AC defends is either not
constitutionally protected or that said some protected speech is restricted by plan. Many argue
that the term constitutionally protected speech is a vague term, opening up room for specification
shells. Restriction is also an interesting word; interpretations could easily argue that the
67
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affirmative stops regulation of speech (many see these acts as distinct). Restriction also presents
opportunities for specification shells arguing that an 1AC plan must include a solvency
mechanism.
Kritiks
The kritik is a dangerous weapon for the negative on this topic. First, a civil discourse
critique is an easy pick. A Wilderson-esque argument that the discussions set up by the
affirmative are still inherently white and dominated by whites necessitating an ethical rejection
and an end to white society would be highly effective. A second option is a reformism critique.
Various strains of anti-capitalism and anti-imperialist literature argue that acting within the state
to compromise only entrenches power, and that only an unflinching rejection of sovereignty can
solve. Settler colonialism is also a strategic argument, with many indigenous scholars arguing the
debate is irrelevant because public universities are built on stolen land. Only handing back the
land and giving discursive power to indigenous people can end the dominating practices of the
affirmative harms. Critiques of public education, based on the specific form of education in
question (Masculine, Racist, Etc.) also link well, arguing that the discourses the affirmative
allows cedes to the reductionist power of the state.
Disadvantages
Disadvantage ground is perhaps tougher on this topic than in others. This paper
encourages debaters to really explore Kritikal and theory round in addition to case before looking
at DA debate. That said, a few options exist. First, a Baiting DA would argue that the affirmative
sends a signal that all speech is acceptable (regardless if thats true), which will increase verbal
harassment and rhetorical violence in the form of hate speech. Second, a Flight DA would
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likewise argue that the 1AC scares minority students out of the public education system because
its too risky. The impacts can vary from whitening of institutions, poverty, and intellectual
decline. This paper highly recommends finding a solvency advocate for PIC related to these
types of DAs. Simply advocating for unlimited speech as per the plan minus one instance likely
resolves all 1AC offense in virtue of scope while still protecting a certain group. The internal net
benefits for certain types of restrictions should focus on why that particular form of hate speech
is uniquely bad for one group.
Good Luck!
Bailey Rung
About Bailey Rung
Bailey is a 2014 graduate of Blaine HS in Minneapolis, MN. Bailey spent his 4-year
career competing in a variety of events, but his true passion lies in Congressional Debate because
of its dynamic nature and challenging format. Some of his highlights include competing in and
presiding semis at ToC and NSDA, as well as finals at Minneapple, Dowling, Blake, and
Harvard. Additionally, Bailey has earned multiple leadership bowl awards and round robin
placements. As a coach, Bailey has helped bring students to MSHSL States, ToC, and Nationals,
and his lab students in Congressional Debate at CBI have made it to outrounds at Glenbrooks,
Blake, Apple Valley, Harvard, Cal, and Nationals & ToC. Bailey is an assistant debate coach at
Ridge High School, and is looking forward to a great year ahead. Bailey is currently a
sophomore at Western Kentucky University, and competes actively in NFA-LD Debate and IEs.
At the 2015 PKD Nationals, Bailey took 3rd in LD Debate, and was an Octofinalist at 2015 NFA
Nationals. Bailey is excited to return to CBI this summer, and hopes to use his own competitive
experiences to make an impact on the lives of attending students. He is currently an assistant
coach for Ridge High School (NJ).
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Lincoln-Douglas Brief
Framework
Analysis
Lincoln-Douglas topic due to the utilization of the word any of the word any, I would urge
these debaters to reflect. In doing so, they might reconsider the impact that these codifications
and restrictions will have on the communitys pursuit of higher education. First, I will provide an
introduction to the legal and constitutional precedents and protections established on the topic,
followed by a discussion of both liberal and neoconservative justifications for the restriction or
protection of constitutional speech, and finally an analysis of the strategic merit of discursive,
legal, and ethical frameworks relevant to issues of free speech.
Unlike our last topic, it is my belief that the constitutional precedents surrounding free
speech are relatively clear and well established, at least until we get into university-specific
precedents. Beginning with Brandenburg v. Ohio, the Supreme Court set clear precedent that
speech that is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action" will not be protected by the First Amendment. The issue with this
precedent is that it has been applied by the to protect the violent threats of KKK leaders and
racist speech, as the threshold of imminent action creates a difficult standard for the
prosecution and thus has offered protection for a wide variety of violent verbal campaigns. More
recently Miller v. California established a bright-line for language so obscene that it should to be
excluded from constitutional protection. The decision established the Miller Test, or a standard
of linguistic works which, taken as a whole, appeal to the prurient interest in sex, which portray
sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious
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because many generic cards from the topic apply to it. This case can be impacted back to
consequentialist frameworks or deontological framework. The implications of this case could
impact out to the support of democracy (and thus prevention of war, nuke war etc.), they could
focus on structural violence, or they could speak to human dignity. All of these frameworks are
strategic in their own way, so when choosing cards from this file (and subsequently a
framework), keep in mind what types of debates they will be getting you into.
This is a great case because it allows you to limit the topic just enough to avoid a lot of
arguments that the negative might read while maintaining the bounds of the topic. This is
beneficial because it allows you to access all the benefits of the top while negative arguments
like the Hate Speech CP do not apply.
There is a lot of literature about free speech zones outside of universities (such as
political rallies). This literature can be beneficial in regards to spill over arguments in relation to
the impacts and use of free speech zones. Be careful when using these cards though, and
particularly cards that reference court cases in relation to free speech zones, because often they
wont directly apply to universities or colleges.
*Free speech zones on face sounds good, so it will be important to define the free speech
zone both in terms of itself and its effects for those judges who are not familiar with the concept
of the topic literature.
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Prayer on campus has been limited via the use of free speech
zones.
Irby, Kate. "Clemson Official Tells Praying Man To Leave Because Its Not A free Speech
Area." The Charlotte Observer. August 31, 2016. Web. December 05, 2016.
<http://www.charlotteobserver.com/news/state/south-carolina/article98993982.html>.
Kyra Palange was walking across Clemsons campus last Thursday afternoon when she saw a
man sitting in a folding chair, with an empty chair sitting next to him. The Clemson grad student
walked closer to him and saw a sign on the empty chair that said PRAYER, according to the
Young Americas Foundation. I approached him and we sat down to pray for a few minutes,
Palange told Young Americas Foundation. When we finished, a man from the university
approached us and said he could not be praying there because it was not a designated free
speech area and presented the person who was praying with a form for the procedures for
applying for solicitation on campus. He told him he had to leave. Palange captured part of the
interaction on video. In it, a Clemson University official identified as Shawn Jones confirms to
Palange that the entire campus is not a free speech area. Clemson University spokesman Mark
Land told the College Fix that they did not ask the man to leave campus or interrupt his prayer,
and people are welcome to pray anywhere on campus. But individuals or groups not affiliated
with the university have to register certain activities so they can be conducted in appropriate
areas. In this case, the community member had posted a sign inviting people to pray with him
constituting, in the universitys view, a solicitation to join a gathering, Land said. As such, one
of our administrative staff members politely informed the individual of the process for obtaining
approval to hold such a gathering. We Roar Clemson, a free speech group on campus, is
planning to protest the policy on Friday, calling it unconstitutional. They will attempt to make it
seem like they are listening to our concerns, but all they will really do is treat us like children
that have to be manipulated and pacified while they continue to create and enforce arbitrary
policies, the group said in an email.
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Free speech zones bleed off campus, they have been adopted
as a means to constrain politics in the community at large.
Herold, Joseph. "CAPTURING THE DIALOGUE: FREE SPEECH ZONES AND THE
CAGING OF FIRST AMENDMENT RIGHTS." Drake Law Review. July 19, 2006.
Web. December 06, 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ua
ct=8&ved=0ahUKEwiQhfLQ_d_QAhXJr1QKHYTC54QFggdMAA&url=https%3A%2F%2Flawreviewdrake.files.wordpress.com%2F2015
%2F06%2Flrvol544_herrold.pdf&usg=AFQjCNGylF863ToNNnJAsBmTjyrfgHwh2A&sig2=3y85rrM68Mj
M9sxcdzeGfA>.
Yet free speech zones have moved beyond the boundaries of the college and university campus
and can now be found in the realm of public politics, from the municipal through the national
level. A public library in Mesa, Arizona, confined protestors, even silent ones, to a free speech
zone the size of a parking space and set against a wall behind a bike rack.12 In 2002, a
Pennsylvania man was arrested and charged with disorderly conduct for refusing to move to a
free speech zone behind a fence during an appearance by the President, even though supporters
were allowed outside the free speech zone cage and closer to the rally.13 In a similar incident,
a South Carolina man was arrested during a presidential visit and prosecuted under a law that
prohibits entering a restricted area around the president of the United States; he refused to go
to a free speech zone half a mile away after he noticed that supporters of the President were
allowed to stand outside the protest zone and closer to the President.14 Individuals in Iowa
wearing shirts and buttons supporting rival presidential candidate John Kerry were barred from
attending, and some were arrested, during public campaign events for President George W.
Bush; one ticket- holder wearing a satirical Bush campaign button at another event was forced to
stand behind a wall of Secret Service agents and prevented from asking any questions.15These
instances show that the free speech zone has obviously been recognized as an effective means of
isolating First Amendment activity that those in positions of authority consider disruptive.
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establish any spending limits on campaigns for student government. This aff assumes that
campaign spending is constitutionally protected speech, which was established under Buckley v.
Valeo (1976) and re-affirmed in Citizens United v. FEC (2010). The best argument for this aff is
simply constitutionality. You would argue that the logical implication of these two Supreme
Court decisions is that colleges cant place expenditure limits on student government elections.
In my research, I didnt really find a good non-legal argument for why student-run campaigns
should get to spend unlimited sums of money. So, this route is best.
The plan should have the Supreme Court rule that these expenditure limits are
unconstitutional under the First Amendment. The best framework to read is that the Supreme
Court should faithfully adhere to its previous precedent. This is the principle of stare decisis. So
long as you argue that the Court should strictly adhere to this principle, you can prove that the
Court should decide consistently with Buckley and Citizens United even if those decisions may
have had undesirable consequences (in my opinion, they definitely have).
The best negative argument is that ending these expenditure limits would make it
considerably harder for poor students to participate in student elections. Theyll get out-spent by
affluent kids who have their parents money to bankroll a campaign. Of course, to beat this aff,
the negative would also have to argue against stare decisis and explain why Buckley and Citizens
United rely on flawed understandings of free speech. You should cut cards from the dissenting
opinions in these cases to prove your argument here. I dont think the best negative strategy here
is to say that the Constitution is bad, or that constitutionality shouldnt be the framework, simply
because it doesnt seem persuasive to say that the Supreme Court, of all institutions, should just
ignore legal precedent in favor of a revolutionary alternative. I suppose if you were to kritik the
Court itself, you could make this argument. But you have to make sure youre arguing the state is
bad and that we need a bottom-up, revolutionary politics that doesnt place hope in SCOTUS
decisions.
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A2 Expenditure Limits Bad: Ninth Circuit case proves-student government expenditure limits do not violate free
speech.
New University`. "Spending Caps Stop The Arms Race.". May 04, 2009. Web. December 07,
2016. <http://www.newuniversity.org/2009/05/opinion/spending_caps_stop_the188/>.
On the other hand, in 2007, the Ninth Circuit Court of Appeals, the same court that would have
heard the Welker case had UCI decided to appeal, upheld student election spending caps at the
University of Montana. The University of Montana, unlike UCI, decided to appeal a lower
courts decision to overturn its $100 spending cap, the same amount as the UCI cap. In Flint v.
Dennison, the Court dismissed Welker v. Cicerone, saying that its application of Buckley v.
Valeo, the 1972 Supreme Court case that ruled money a form of constitutionally protected free
speech, was mistaken. Valeo does not apply to school campaigns, even those at public
universities. Unlike Judge Timlin, the Court wrote that in its opinion, we see the several
differences between the [Associated Students of the University of Montanas] elections and
state and national political elections and therefore have no trouble making such a distinction.
The Court found that student government is not equivalent to federal and even state and local
government. Student government is unique; it exists and operates in a different environment. A
university like the University of Montana uses student government primarily as an educational
tool a means to educate students on principles of representative government, parliamentary
procedure, political compromise and leadership. Student governments ultimately exist at the
discretion of the Regents. They are already regulated in ways that other elections are not. For
example, under section XIV of ASUCI Elections Code, candidates must have, among other
requirements, a Grade Point Average of at least 2.0. Executive officers must have junior
standing. These requirements, though perfectly acceptable and legal in ASUCI elections, would
likely be unconstitutional outside of the university setting. The Supreme Court refused to hear an
appeal filed by the plaintiff. Thus, the Courts decision stands and spending caps in student
elections are, in fact, not a violation of a candidates constitutional free speech and free assembly
rights.
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oppressive structures. One way to make this argument is through the lenses of free speech being
key to check back against the US government. This argument should be effective as it allows you
to claim more long term solvency by influencing adverse practices the US government employs.
To do this, one of the key pieces of evidence will be the Richard Kahn evidence that argue the
US government limits free speech on university campuses by arresting and framing
environmentalists. This argument is persuasive because it takes into account a not commonly
considered form of government oppression in the realm of free speech. Additionally, it allows
you to claim that more free speech will benefit the passage of environmental policies. Another
way to make this argument is with the Tariq Khan evidence because it lets you argue that free
speech gives colleges a way to check back against US imperialism. This path lends itself to a
framework of upholding the social contract because it gives the people of the US government a
way to check back against governmental power creep. Another framework choice would be
consequentialism because it allows you to focus on the consequences of combating the
government more than the risk of hate speech that may ensue with free speech. The next path
that this contention could take is with the Bryant William evidence. This evidence argues that in
order to best fight oppressive forms of speech we need to have completely free speech as it gives
civilians the best opportunity to combat dissenting hateful speech. A deontic framework would
function well with this claim because it allows you to make arguments justifying free speech
because it allows all voices to be heard. However, this argument could easily be framed under
consequentialism as well because William argues that this free speech creates a way to reform
democracy in America.
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Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
picketing at the funerals of American soldiers who were killed in Iraq and Afghanistan. The
Westboro protestors carry signs with messages such as Fags Doom Nations, God Hates
Fags, Fag Troops, and Semper Fi Fags. The Supreme Court decided, in an 81 vote, that
the First Amendment protected Westboros speech. In the majority opinion, Chief Justice John
Roberts wrote: Westboro believes that America is morally flawed; many Americans might feel
the same about Westboro. Westboros funeral picketing is certainly hurtful and its contribution to
public discourse may be negligible. But Westboro addressed matters of public import on public
property, in a peaceful manner, in full compliance with the guidance of local officials. The
speech was indeed planned to coincide with Matthew Snyders funeral, but did not itself disrupt
that funeral, and Westboros choice to conduct its picketing at that time and place did not alter
the nature of its speech. (p. 1220) Robertss opinion emphasized the structural values of free
speech and exchanges of ideas over protecting people in an oppressed position from what Young
(2010) defined as violence, such as harassment and intimidation. Young argued that violence is
institutional because in many situations it is encouraged or tolerated. Violence is woven into our
society, Young (2010) wrote: Group-directed violence is institutionalized and systemic to the
degree that institutations and social practices encourage, tolerate, or emable perpetration of
violence against members of specific groups (p. 44). She noted that change must come through
cultural images and how dominance is reproduced in everyday life.
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Schroeder, Jared. "Electronically Transmitted Threats And Higher Education: Oppression, Free
Speech, And Jake Baker." The Review of Higher Education. Spring 2013. Web.
December 08, 2016. <https://muse.jhu.edu/article/502331/pdf>.
using information and communication to foster a campus environment that focuses on the
awareness and acceptance of diversity. Universities provide varying levels of educational
programs regarding diversity. These programs, while valuable, are not a focus of this article.
Possible fruits of the conceptual ideas considered here would include strong, concerted, and
relevant online programs regarding diversity awareness. Essentially, campus leaders should
employ the same tools that can disrupt the university environment to encourage and cultivate an
atmosphere of openness, understanding, and acceptance
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William, Bryant. "The Counterrevolutionary Campus: Herbert Marcuse And The Suppression Of
Student Protest Movements: N." Routledge Taylor And Francis. September 14, 2016.
Web. December 08, 2016.
<http://www.tandfonline.com/doi/full/10.1080/07393148.2016.1228580?needAccess=tru
e>.
politically driven censorship policies, was given its intellectual legitimization by Marcuse.13
This is particularly remarkable, given Marcuses explicit insistence that at present, no power, no
authority, no government exists which would translate liberating tolerance into practice.14
Indeed, the withdrawal of toleration for bellicose, bigoted and destructive speech that Marcuse
advises has nothing to do with official, governmental or institutional censorship. He never makes
any demand for the exercise of state power, and in all of his works remains deeply suspicious of
what he labeled the Establishment, the complex of government, corporate, military and
institutional powers that preside over late capitalism. Rather, the withdrawal of toleration for
violence belongs to an organic, democratic movement of conscientious individuals, a rejection of
prevailing values called the Great Refusal. Citizens of conscience, not the state, which in the
Marxist view only serves to manage the interest of the ruling class, will refuse to listen, will
actively protest, the speeches of warmongers.15 The tactics employed by oppressed and
overpowered minorities will constitute extralegal means.16 Students, not administrators, will
refuse to passively accept Establishment views, views that promote war after war, and a
perpetual condition of exploitation.
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framework debating skills. The AC follows the general structure that free speech is
necessary/beneficial to autonomy, autonomy is good, thus free speech ought not be limited on
college campuses. The framework level is where you will have the chance to prove that
autonomy is the paramount standard and should come before anything else. When proving that
free speech and autonomy are heavily linked there are many pools of literature that can be pulled
from: legal cases, philosophy, etc.
When reading this case, it is easy to circumvent a lot of topic literature because there is
plenty of generic literature on the relation of free speech to autonomy. It would be wise to utilize
cards (many of which are in this file) that link the university as a place where free speech is
crucial. This case can also draw from many of the cards included in other sections like the
Legalism AC because many Supreme Court cases show the importance of free speech in relation
to self-determination.
Another alternative impact is to frame how important autonomy is in the context of
expression is for college students. There is plenty of literature (and cards included) that speaks to
the importance of college students to have the ability to speak openly and freely. Arguments like
polls or studies showing the importance of free speech can also be utilized in this AC to help
affirm the position that people want their free speech rights to be unhindered. These arguments
will be harder to link back to the standards/criterion because they do not speak to the impact of
free speech on autonomy, however autonomy and desires are linked, and thus poll arguments
would still apply.
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Kant AC
This aff is pretty straightforward. Because human freedom ought to be inviolate, no
restrictions on free speech are justified even if they serve some greater good. To win this case,
you need to argue that free speech is a fundamental human right (connected to our rational
capacities), and that restrictions on speech could not be universalized under the Categorical
Imperative. Kant himself wrote about the importance of freedom of the pen, and that could be
incorporated into an aff that focuses on written speech.
The strategy behind this affirmative is to undermine negative PIC (plan-inclusive
counterplan) ground. Because the resolution says any restrictions, the neg will be inclined to
say allow for speech in all instances except x in order to resolve the affirmatives harms. The
Kant aff is built to answer these PICs very effectively. The PIC could not be universalized
because it would be a contradiction in the will to both extend free speech and limit it at the same
time.
The best negative answer to this case is that we should adopt a utilitarian understanding
of rights. Its not really practical for universities to grant absolute freedom to students, and
college administrators ultimately have to decide whether some restrictions are conducive to the
well-being of the campus. Another argument to explore is that public colleges and universities
are not rational agents in a Kantian sense. Kantian ethics might make sense for the individual,
rational agent, but the governing bodies of universities are comprised of a collection of agents
who do not always share the same reasons and values. The affirmative could always appeal to
the essential liberties of the Constitution, as well as the marketplace of ideas, to push back
against these arguments.
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Legalism AC
The legalism AC is likely going to be a very common affirmative on this topic. This AC
is great because it is very adaptable and can be cut down for more traditional debaters or added
onto for national circuit rounds. The Legalism AC follows the general principle that you should
do X because it is coherent with the law. In the case of the resolution, this statement would be
The United States ought NOT ban constitutionally protected free speech on public universities
because free speech is protected by the law.
This may seem like a redundant argument given that the resolution specifies the
constitution, however it becomes more nuanced in that the affirmative framework would be
claiming that the law is a normative force for action. This framework could be applied in several
ways including a) The law is good because it leads to good consequences b) the constitution is
axiomatically good c) the law in general is axiomatically good. The contention levels will remain
relatively the same by citing various Supreme Court cases, laws, legal standards etc. that show
that free speech is protected on public college campuses.
Many of the cards in this file are taken straight from Supreme Court rulings or law texts.
When doing your own research, be careful to not cut any evidence applying to private
universities. This AC should be very fast to assemble given that the cards dont need as much
flow because they each act as an independent justification. The danger in reading an affirmative
like this lies in the framework debate as descriptive standards are heavily contested and there are
many things in the law that are hard to defend as good.
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Bell, Jeannine. "Restraining The Heartless: Racist Speech And Minority Rights." INDIANA
LAW JOURNAL Vol. 84:963-979. Summer 2009. Web. December 03, 2016.
<http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1132&context=ilj>.
The U.S. approach to regulation of racist speech is one of broad protection, with the exception of
situations in which such speech is coupled with violence. Attempts to regulate racist speech on
college campuses has largely failed, with hate speech codes challenged at the University of
Michigan99 and the University of Wisconsin.100 Interestingly enough, research in this area
reveals that, though the universities whose codes were held unconstitutional complied by
removing their codes, twenty-five percent of schools nationwide failed to comply with court
decisions and left their codes intact.101 In the public arena, after R.A.V., racist speech is subject
to little regulation and may not be prohibited simply because the State disfavors the viewpoint it
offers. Wisconsin v. Mitchell and Virginia v. Black, the cross-burning cases that left R.A.V.
intact, are the Courts two most recent statements on racist speech, and they permit regulation of
racist speech. Taken together, these final two cases suggest that the safest path to the regulation
of racist speech, from a First Amendment perspective, is to regulate racist speech only when it is
coupled with violence.
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Marketplace of Ideas AC
This aff says that public colleges and universities ought to be considered marketplaces of
ideas. The marketplace of ideas philosophy has been very influential in First Amendment
jurisprudence. The idea is that we ought to allow people to pick and choose, like consumers,
between a variety of competing ideas in a free and open marketplace. Restrictions on free
speech are antithetical to this view of freedom. Restrictions might be especially harmful to the
academic freedom on which college campuses thrive.
The best framework for this aff is one rooted in deliberative democracy and its
importance on a college campus. This topic gives us an excellent opportunity to delve into
theories of free speech, and the marketplace of ideas is one of them. Reading this affirmative
enables you to craft a more topic-applicable framework argument than the Kant aff (though
thats not to say you shouldnt consider writing the Kant affif I thought that, I wouldnt have
written the how-to!).
The best negative argument against this aff is that the marketplace analogy for free
speech is (a) somewhat flawed, and (b) actually justifies restrictions. I wont delve into the
myriad objections to the theory, but the reason it might justify restrictions is that any legitimate
market has regulations which enable an outside actor to intervene and curb the markets
excesses. The market might be desirable, but we shouldnt take a hands-off (laissez-faire)
approach to said market. The affirmative could always double down and say that a scenario of no
restrictions is better for that market, which might lead both debaters to delve into economic
theory.
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The University of Delaware failed its incoming classes as well. These new students werent even
given a chance to form ideas before they were bombarded with a concisely stated and often
repeated set of beliefs that they were all expected to share. The idea for this indoctrination came
straight from the schools top Residence Life directors, with an obvious goal in mind: Make
every students views the same. Proactively eliminating diverse ideas about controversial
subjects is an abhorrent practice. The University of Delaware Residence Life program sought to
systematically weed out touchy conversations before they were even had. Those who may have
had different views than the ones being dictated soon realized that they were in the minority. By
the end of orientation, the point was hammered home, and their ideas were flushed down the
spiral of silence. While the policies of Delaware and Valdosta State were different, the effect was
the same. New or unpopular ideas were crushed. Whether they were pushed out of sight or
overpowered by indoctrination, they were removed from the marketplace. Students felt less free
to explore their educational boundaries, and scholarship stayed inside the box. Exploratory
thinking was discouraged.
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It is imperative that the leaders of educational institutions understand that these are the exact
freedoms that allow their schools to function in the first place. When schools ignore this, they
can enact policies that send a destructive message: at this school, speech will only be free when
it is convenient. This is the absolute wrong direction for policies to move. Entire campuses
should be free speech zones. Inside the borders of campus, there should be no borders to the
freedom of speech and expression. The first day of college should not be meant to force all
students into the same school of thought. It should be exactly the opposite. Students should learn
from their orientation that their class is a diverse body of young minds and that this diversity is
invaluable.
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At a glance, it may seem convenient for college and university leaders to eliminate the
discomfort of controversy. But this line of thinking overlooks a critical truth: America first
surfaced from under a whirlwind of controversy. Her founding fathers were the dissenters of the
day. It was their dissent that helped set in stone the values on which the nation still rests today.
Undercutting freedom to silence dissent is not only flawed as a matter of policy, but it is unAmerican. It is on the shoulders of all American educators to, as economists would say,
strengthen the marketplace of ideas by allowing as much competition as possible.
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The starting point for an examination of college-level First Amendment jurisprudence is the
1972 case of Healy v. James, in which the Supreme Court considered a college president's
rejection of a student application to form a local chapter of Students for a Democratic Society at
Central Connecticut State College. In rejecting the application, the president found that "the
organization's philosophy was antithetical to the school's policies, and that the group's
independence was doubtful." In considering the dispute, the Supreme Court stated, "At the outset
we note that state colleges and universities are not enclaves immune from the sweep of the First
Amendment." The Court then explicitly rejected the notion that First Amendment rights should
be different on college campuses than they are in the community at large and thus held that the
students' free association and free expression rights were violated. The Court found the
president's concern that the organization would cause disruptions on campus unpersuasive, citing
a lack of evidence in support of the president's contention."
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1. Role of Free Expression in College Education Unlike primary and secondary schools, the
Court has long held, college campuses are unquestionably a "marketplace of ideas." Exposure to
many viewpoints indeed historically has been a defining characteristic of higher education. With
this mindset, the Supreme Court has held, for example, that a university cannot fire employees
pursuant to a state law for belonging to the Communist Party. To do so, the Court has stated,
would contravene the notion that the "[n]ation's future depends upon leaders trained through
wide exposure to that robust exchange of ideas." The Court focused on similar principles in
Healy v. James. In ruling that a college could not prohibit the formation of a student organization
because it opposed the organization's viewpoint, the Court emphasized that the First Amendment
applies equally to college campuses as it does to the society as a whole: [T]he precedents of this
Court leave no room for the view that, because of the acknowledged need for order, First
Amendment protections should apply with less force on college campuses than in the community
at large. Quite to the contrary, "[t]he vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools." The college classroom with its
surrounding environs is peculiarly the "marketplace of ideas," and we break no new
constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom.
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Were the federal courts to restrict those First Amendment rights on college campuses, nothing
short of a chilling effect on diverse expression and academic freedom would result. The Student
Press Law Center already has established that the incidences of censorship in the nation's
secondary schools have increased significantly since Hazelwood. For instance, between 1988,
the year of the Supreme Court's Hazelwood decision, and the end of 1996, the number of
inquiries to the Student Press Law Center from public school student journalists and their
advisors rose 163 %. Extending Hazelwood to college campuses would have the same effect.
Moreover, the ever expanding application of Hazelwood in secondary schools could also occur
on college campuses, resulting in regulation not only of college newspapers and yearbooks, but
also potentially of student theatrical productions, college libraries and even faculty expression.
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Nonetheless, in order to apply Hazelwood to speech on college campuses, the Supreme Court
ostensibly would have to reject significant precedent. Specifically, as discussed in Part III, the
Court would have to reconcile the vastly different approaches it has taken toward free expression
at the college level as opposed to the secondary school levels. At the same time, the Court would
have to address the fundamental differences between college students and secondary school
students. Finally, the Court would have to recognize the chilling effect the extension of
Hazelwood could have on the "marketplace of ideas" philosophy currently embedded in the
nation's college campuses. Whether the Supreme Court, or any other federal court, would take
those steps remains an open question. Perhaps, the Court ultimately will answer Hazelwoods
footnote seven in the negative, putting a definitive end to such concern. Only then would
colleges and universities maintain their status as the country's "marketplace of ideas."
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A2 Aff Free Speech Conceptions: The aff relies on a valueneutral conception of free speech--this is flawed.
Hanlon, Aaron. "The "Free Speech" Charade." The New Republic. May 17, 2016. Web.
December 07, 2016. <https://newrepublic.com/article/133531/free-speech-charade>.
In this graduation season, college students across the country are making final preparations to
enter the real world. For years, theyve been told colleges are heterotopic spaces where free
speech is dead and students are coddled, whereas the real world is a massive free-speech zone
where they must fend for themselves. The latest such scolding comes from Michael Bloomberg
and Charles Koch in a Wall Street Journal op-ed, Why Free Speech Matters on Campus. This
unlikely pair offer a number of views with which we should all agree, including, The purpose of
a college education isnt to reaffirm students beliefs, it is to challenge, expand and refine them,
and, Through open inquiry and a respectful exchange of ideas, students can discover new ways
to help others improve their lives. But Bloomberg and Koch arent simply interested in free
speech in the way these eloquent, brochure-ready statements suggest. Rather, free speech is a
way of framing their ideological intervention as if its bipartisan and value-neutral, which it isnt.
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Neoliberalism/Wendy Brown AC
Arguments that focus on neoliberalisms creeping influence into liberatory rhetoric and
strategies critique the individualizing effects, divisiveness, and the entrapment of identities
within this framework, frustrating calls for freedom. The Halberstam evidence in this section of
the brief speaks to the individualizing effects of a facile understanding of trauma, creating
division within the long fought for coalitional politics of the Left. Further, Wendy Brown argues
that such restrictions on speech codify subordinated identities within the laws, confirming their
legal status. The final component of these sets of arguments arises from the Judith Butler article
cited in this section. Such approaches ignore the unique judiciary violence enacted through
interpretations. The combination of these three arguments forms a potential Left position against
restrictions on free speech. The possibilities for liberation actually reside within this discourse,
through the process of resignification of terms that are injurious. The primary example used in
this body of the literature is the reclamation of the term queer in the context of Queer Theory.
The framework that could be used in conjunction with these arguments takes a couple of
forms. First, you could draw from Girouxs theory of education and politics regarding the despair
of neoliberalism for critical pedagogy. Secondly, you could draw from a number of quasi-ethics
from post-modern authors including Butler, Derrida, and recent interpretations of Levinas.
Finally, you could potentially claim that the proliferation of neoliberal ideology has drastic
consequences, appealing to a quasi-consequentialist framework. Regardless, this position
provides a lot of clash between possible negative positions that rely on some forms of Critical
Race Theory and Feminism.
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Slippery Slope AC
What truly makes this Affirmative a strategic case to run, is your ability to control links
and internal links in the round. Instead of trying to construct larger external impacts, the case
instead focuses on the heart of the topic, and in which direction links should go.
You should use not only constitutional spillovers, but broader institutional change, such
as social movements and racial discrimination in order to preempt the arguments that will likely
be read by the Negative Team. Investing time out of the AC to fire off quick arguments about
how you will be controlling the implications and links of the Negative not only makes your
second speech easier, but also forces the Negative to either drop your arguments or do extensive
evidence comparison to get ahead in the debate. For instance, making a preemptive claim that a
firm stance on privacy is essential to protect from larger surveillance spillovers onto campus,
such as informant policies, will allow you to turn claims about Hate Speech, and allow you to
adequately weigh impacts. Unfortunately, the question of racism, social movements, and equality
will likely become a murky debate, and you need to ensure that your arguments are articulated
concisely to avoid a judge making a gut check decision.
However, the main way to avoid this murky debate, is to have some sure-fire impacts that
you will definitely be winning after the two constructives. This argument should be a democracy,
or enlightment value spillover contention, that not only makes intuitive sense for the judge, but is
also extremely supported by the literature base for the topic. Using cross examination time to
further question how things like Hate Speech is uniformly defined in legislation further proves
your point that it will be vaguely used to enact silencing policies.
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Friedersdorf, Conor. "Free Speech On Campus Is Under Attack." The Atlantic. March 04, 2016.
Web. December 05, 2016. <http://www.theatlantic.com/politics/archive/2016/03/theglaring-evidence-that-free-speech-is-threatened-on-campus/471825/>.
them. It is threatened by people who push to disinvite speakers because of their viewpoints and
those who shut down events to prevent people from speaking. Harper and Stanley were
unpersuaded that free speech is under threat not because they defend speech codes or sanctions
both say outright at different times that they are for untrammeled speechbut because they are
blind to the number and degree of threats to speech. And this whole discussion has been
restricted to documented, overt threats to speech. Chilling effects are harder to quantify or cite,
but they are real. Professors and students see those around them being punished for their
viewpoints and decide to hold their tongues rather than speak their minds. Stanley denies that
this is a significant problem. And yet, last semester, without looking very hard, I found and
spoke to tenured and non-tenured professors and students at Yale, his own institution, who told
me that their speech was chilled. They feared that their place at the school would be jeopardized
if they opined honestly about campus controversies; or did not want to be targets of intolerant
activists like the ones who spat on lecture attendees because the activists disagreed with words
spoken at the lecture. The evidence that free speech is threatened on college campuses is
overwhelming. Doubters who cant accurately characterize the evidence should study the
relevant material more thoroughly before dismissing free-speech concerns and impugning the
motives of the people who raise themespecially if, like Harper and Stanley, they earnestly
believe that free speech should be protected. I urge them to look again at the evidence and to join
other liberals already engaged in this fight. The marginalized college students of the future will
thank them.
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Balancing Test NC
This NC is effective because it applies to every affirmative. No matter the affs goal,
which they claim free speech achieves, your central argument is that sometimes-free speech will
have to be curtailed to achieve that goal. The more particular argument youd make is that
universities have core purposes for which they may sometimes allow or restrict speech. Since the
affirmative has to argue in favor of having no restrictions, the negative wins by proving that
there are exceptions to the rule.
The best framework for this NC is one that argues that notions of good or bad,
right and wrong, are dependent on the characteristics and purposes of an actor. This way,
you can take for granted whatever purposes a university has established (the most obvious being
education) without appealing to some foundational reason why restrictions are necessary. To
bolster your case, you should argue (as Stanley Fish does in his piece on free speech) that
restrictions/limitations are constitutive of speech itself, and that speech can only be valuable so
far as there are some limits which define what speech is valuable and what speech isnt.
The best affirmative answer to this case is that the university is a marketplace of ideas.
All of a universitys purposes are thwarted if they fail to allow for free and open dialogue in all
circumstances. The only universities whose mission statements contain core moral beliefs, which
might justify restrictions, are privately-funded, religious institutionsand the resolution is about
public colleges. So, the negative will have to explain why public institutions must also limit
speech to achieve their purposes. This is where you could incorporate the hate speech debate into
your NC.
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Take the case of universities and colleges. Could it be the purpose of such places to encourage
free expression? If the answer were yes, it would be hard to say why there would be any need
for classes, or examinations, or departments, or disciplines, or libraries, since freedom of
expression requires nothing but a soapbox or an open telephone line. The very fact of the
universitys machineryof the events, rituals, and procedures that fill its calendarargues for
some other, more substantive purpose. In relation to that purpose (which will be realized
differently in different kinds of institutions), the flourishing of free expression will in almost all
circumstances be an obvious good; but in some circumstances, freedom of expression may pose
a threat to that purpose, and at that point it may be necessary to discipline or regulate speech,
lest, to paraphrase Milton, the institution sacrifice itself to one of its accidental features.
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The Ban Hate Speech CP will be a great and fast strategy against virtually every
affirmative. The Ban Hate Speech CP is exactly what it sounds. Additionally, there are plenty of
solvency advocates for this because the majority of the international community has banned or
has severe restrictions on hate speech. The topic literature on this is plentiful and most of it
applies directly to universities and colleges.
This counterplan is competitive textually because you cannot ban hate speech (which is
constitutionally protected) and not ban free speech; this is because hate speech is considered to
be free speech. Another way to make this CP competitive will be to read the Hate Speech DA
alongside of it (cards necessary for the DA are included). This CP/DA combo can be used as a
turn to structural violence, human dignity, or autonomy ACs. Because it can function directly
under the framework of most affirmative cases, there is no need to read your own framework
with it. One affirmative to be careful reading this against is the legalism AC because they will
likely argue that hate speech is legal so it is fine in context of their framework.
This case can be very efficient as it can be read as one card with a solvency mechanism.
This is because it is textually competitive like talked about above. It can also be beefed up and
used as a full strategy against the affirmative. When reading this, remember to include a card (or
at least have it on hand) that says that hate speech is constitutionally protected. This will avoid
the perm debate on the CP (these cards have been included in this file as well).
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PEN America. "And Campus For All."October 17, 2016. Web. December 07, 2016.
<https://pen.org/on-campus>.
instead create a new show them- selves out of concern for the sensitivities of transgender women
who do not have vaginas.291 Some critics decried the decision as an example of political
correctness in overdrive, causing students to self-censor and mothball and important feminist
play out of fear of offending a small sub-group. Yet Johnston wrote that the focus on free speech
suppression had it precisely backwards, because the decision not to perform the play was itself
an act of protected speech: When word of this decision broke in the media, the troupe was widely
accused of censorship But who exactly was being censored here? Who was being silenced?
What was being regulated? The troupe hadnt been forbidden to stage the play. Theyd just
decided not to. Surely the same freedom of speech that had given them the right to perform it
gave them the right to stop. And even if other students had en- couraged them in their decision
if, say, activists had gone to the troupe and explained their objections to the play and asked them
not to put it on again, and the performers had mulled the request and decided to honor itthat
wouldnt have been censorship ei- ther. It would have been dialogue, discussionexactly the
encounter of minds and ideas that the university is supposed to nurture.292
*Ellipsis from source
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developed by a resistance to the depiction of law as a neutral tool, and a larger ignorance of the
racialized effects of legal codes, rulings, and proclamations. As an analytical tool, CRT offers
important perspectives about how the law comes to reinstitute White supremacy, and how (or if)
the law can be an effective mechanism for social and political change. One of the primary
scholars cited in support of hate speech regulation, Richard Delgado, argues that hate speech is a
means of citing and re-enacting a long history of racism, giving the power of these words to be
injurious.
To effectively utilize Critical Race Theory as a possible negative position, there are a few
different routes debaters can take. If you have a mind for more philosophical debates,
frameworks that work well with this line of argumentation focus on equality and equal
recognition of marginalized bodies. Frameworks that come immediately to mind include: Veil of
Ignorance, Structural Violence (Winter and Leighton), and Kantian frameworks that focus on
equal consideration of agents.
To utilize the cards in this file effectively underneath these frameworks, you must show
that 1) hate speech is part of a larger history of white supremacy, and the use of these injurious
words helps recreate and maintain these systems and 2) hate speech has real world effects on
marginalized bodies in terms of their ability to pursue educational opportunities, and to
participate within public discourse generally. Alternatively, you can couple some of the
arguments Richard Delgado makes with Role of the Ballots that focus on the contestation of
racism within discursive spaces. Specificity to educational and discursive spaces is key here,
since it will better prepare you for comparison between framing mechanisms.
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Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016. <h
p://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
category of deserved-victim, his or her behavior may well continue and escalate to bullying and
physical violence. Further, the studies appear to demonstrate that stereotypical treatment tends to
generalize- what we do teaches others that they may do likewise. Pressure valves may be safer
after letting off steam; human beings are not.
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Delgado, Richard. "Pressure Valves And Bloodied Chickens: An Analysis Of Paternalistic
Objections To Hate Speech Regula." 82 Cal. L. Rev. 1994. Web. December 03, 2016.
<http://scholarship.law.berkeley.edu/californialawreview/vol82/iss4/5>.
Amendment must be a seamless web. It is we, however, who are caught in a web, the web of the
familiar. The First Amendment seems to us useful and valuable. It reflects our inter- ests and
sense of the world. It allows us to make certain distinctions, toler- ates certain exceptions, and
functions in a particular way we assume will be equally valuable for others. But the history of the
First Amendment, as well as the current landscape of doctrinal exceptions, shows that it is far
more valuable to the majority than to the minority, far more useful for confining change than for
propelling it.8"
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In reality, those who hurl racial epithets do so because they feel empowered to do so.92 Indeed,
their principal objective is to reassert and reinscribe that power. One who talks back is perceived
as issuing a direct challenge to that power. The action is seen as outrageous, as calling for a
forceful response. Often racist remarks are delivered in several-on-one situations, in which
responding in kind is foolhardy.93 Many highly publicized cases of racial homicide began in just
this fashion. A group began badgering a black person. The black person talked back, and paid
with his life.94 Other racist remarks are delivered in a cowardly fashion, by means of graffiti
scrawled on a campus wall late at night or on a poster placed outside of a black student's
dormitory door.95 In these situations, more speech is, of course, impossible. Racist speech is
rarely a mistake, rarely something that could be corrected or countered by discussion. What
would be the answer to "Nigger, go back to Africa. You don't belong at the University"? "Sir,
you misconceive the situation. Prevailing ethics and constitutional interpretation hold that I, an
African American, am an individual of equal dignity and entitled to attend this university in the
same manner as others. Now that I have informed you of this, I am sure you will modify your
remarks in the future"? The idea that talking back is safe for the victim or potentially educative
for the racist simply does not correspond with reality. It ignores the power dimension to racist
remarks, forces minorities to run very real risks, and treats a hateful attempt to force the victim
outside the human community as an invitation for discussion. Even when successful, talking
back is a burden. Why should minority undergraduates, already charged with their own
education, be responsible constantly for educating others?
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A2 Classist objection.
Delgado, Richard. "The Neoconservative Case Against Hate-Speech RegulationLively, D."
Vanderbilt Law Review Vol. 47. 1994. Web. December 03, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112274>.
In one respect, the classist argument is plainly off target. Both blue-collar and upper-class people
will be prohibited from uttering specified slurs and epithets. Many hate-speech codes penalize
serious face-to-face insults based on race, ethnicity, and a few other factors.72 Such rules would
penalize the same harmful speechfor example, "Nigger, go back to Africa; you don't belong at
this university"whether spoken by the millionaire's son or the coal miner's daughter. If, in fact,
the prep school product is less likely to utter words of this kind, or to utter only intellectualized
versions like the one in Gates' example,73 this may be because he is less racist in a raw sense. If,
as many social scientists believe, prejudice tends to be inversely correlated with educational level
and social position, the wealthy and well educated may well violate hate-speech rules less often
than others." And, to return to Gates' example, there is a difference between his two illustrations,
although it is not in the direction lie seems to suggest. "Out of my face, jungle bunny" is a more
serious example of hate speech because it (1) is not open to argument or a more-speech response;
and (2) has overtones of a direct physical threat. The other version, while deplorable, is unlikely
to be coupled with a physical threat, and is answerable by more speech.
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Delgado, Richard. "Are Hate-Speech Rules Constitutional Heresy? A Reply To Steven Gey."
UNIVERSITY OFPENNSYLVANIA LAW REVIEW Vol. 146. March 01, 1998. Web.
December 06, 2016.
<http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3437&context=penn_law_
review>.
university proposes a speech code to protect some of the most defenseless members of societyblack, brown, gay, or lesbian undergraduates at dominantly white institutions- Professor Gey
charges us with constitutional heresy and warns that we will all end up thought-controlled
zombies.0 But racism is a classic case of democratic failure; to insist that minorities be at the
mercy of private remonstrance against their tormentors-and that the alternative is censorship-is to
turn things on their head.
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Hate Speech DA
This disadvantage has the potential to be the backbone of the negative strategy in this
topic. It maintains high statistical credibility, and accesses a moral high ground, allowing you to
capture that ever-elusive concept of Pathos.
The uniqueness scenario for the Disadvantage is very well supported, especially in light
of the direction the media is taking in the election. The brink to the Disadvantage is simple, if we
stop having speech codes, a building group of people using speech on campus to rally violent
movements will strike. The interpretations on the concepts of fighting words vary, and this will
likely be a large place of debate on the Disadvantage. I would not be surprised to see
Affirmatives define their way out of a link.
The Disadvantages link relies on speech code success in silencing movements that are
attempting to rally violence. A smart Affirmative team may question at what point a phrase is
constituted as Hate Speech, but I think it is very important to take a step back and demonstrate
that there is a clear difference between Anti-Semitic, violent propaganda, and speech that is
criticizing Israels politics for example.
The impact of the Disadvantage could stop at violent and oppressive speech, or it could
press on to the very real scenario for physical violence. Although both arguments are compelling,
I think winning a chance for a vicious attack is best from the perspective of a judge.
Overall, you need to take a logical stance on this position and detach yourself from
abstract concepts of Democracy that the Affirmative Team will attempt to leverage against the
Disadvantage.
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The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New Hampshire, that
intimidating speech directed at a specific individual in a face-to-face confrontation amounts to
"fighting words," and that the person engaging in such speech can be punished if "by their very
utterance [the words] inflict injury or tend to incite an immediate breach of the peace." Say, a
white student stops a black student on campus and utters a racial slur. In that one-on-one
confrontation, which could easily come to blows, the offending student could be disciplined
under the "fighting words" doctrine for racial harassment. Over the past 50 years, however, the
Court hasn't found the "fighting words" doctrine applicable in any of the hate speech cases that
have come before it, since the incidents involved didn't meet the narrow criteria stated above.
Ignoring that history, the folks who advocate campus speech codes try to stretch the doctrine's
application to fit words or symbols that cause discomfort, offense or emotional pain.
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Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
(Night of Broken Glass), frenzied crowds throughout Germany-stirred on by years of antiSemitic propaganda that had become part of their psyche-set fire to a hundred synagogues,
destroyed shops and houses, raped Jewish women, and killed Jews indiscriminately.14 '
Furthermore, following Luther's ideas, the Nazis denied that Jews were members of a distinct
religion' and denied Jews the right to practice Judaism.' By the time the Nazis came to power, the
malevolent vitriol that German leaders and thinkers spewed against Jews had become deeply
entrenched in German culture. The Nazis were not elected in a cultural vacuum. Hitler could not
have come to power and guided the Final Solution without the support and sadistic compliance
of hundreds of thousands of Germans. Years of anti-Semitic indoctrination prepared Germans for
Hitler's plan.'4' The most basic ethical principles, such as the one adjuring people not to kill
innocent humans, were broken down by centuries of libel directed against Jews. 5 Synagogue
burnings, physical attacks against Jews, and participation in mass deportations became
acceptable for Germans, in large part because prior anti-Semitic rhetoric and systematic
discrimination had dulled their consciences. 146
*Ellipsis from source
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Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
forcibly relocated thousands of miles from their ancestral lands because they were not believed
to have deep attachment to those territories."' During times of war, retreating Indians were
cruelly and unnecessarily slaughtered, regardless of their genders and ages. 71 Characterizing
America's relations with Native Americans, Charles Francis Adams 72 wrote, "the knife and the
shotgun have been far more potent and active instruments in dealings with the inferior races than
the code of liberty." 73 Chief Justice John Marshall's opinion in Johnson v. M'Intosh T "
acknowledged and maintained the disregard for Native American human and property rights. In
Johnson, the Court addressed whether American Indians, specifically the Illinois Piankeshaw
nations, could convey land to private individuals.175 The Court decided that Native Americans
did not possess title to any land since they were roaming hunters, not settled farmers."6 Marshall
recognized that the United States appropriated lands from Native Americans by conquest.177 He
justified the conquest by reiterating the commonly accepted argument that, "the tribes of Indians
inhabiting this country were fierce savages., whose subsistence was drawn chiefly from the
forest."178 Rather than leaving the land a wilderness and allowing indigenous people to retain
their liberty, the Europeans enforced their "pompous claims by the sword."'79 In his decision,
Marshall recognized that the United States expansionist policy was "opposed to natural right[s],"
80 but he nevertheless held that Indians only had a possessory, but not fee simple, interest in the
land they occupied. The accepted "legitimizing narratives"8' and linguistic paradigms used by
Whites to justify their cruelties against the aboriginal peoples of North America caused even
great thinkers like Marshall to argue that Native Americans had less claims to basic human rights
than their White counterparts. As with the widely distributed Nazi stereotypes of Jews, American
stereotypes of Native Americans served as the groundwork for claims of superiority. Repeated
messages about the inferiority of Native Americans and Jews were later instrumental for carrying
out racist policies. The hate propaganda regarding Jews in Germany and Native Americans in the
United States provided a conceptual framework for systematic, widespread oppression. Although
the persecutions experienced by these two groups were significantly different, in both cases
racist utterances significantly contributed to discrimination and destruction.
*Ellipsis from source
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Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
contributed to the rise of hate crimes in the United States. While in the past, hate speech led to
mob violence and the lynching of Blacks, more recently, hate speech inflamed racists into a spate
of Black church burnings.' Before the conflagration of Macedonia Baptist Church, the KK posted
a paper on the doors of the church warning that the "KKK-is watching you." 5 A court
subsequently ordered the KK to pay $37.8 million to the Church, after a jury determined that the
KKK stirred up hatred "that led to the burning" of the "predominantly black church.""6 The
spread of hate propaganda desensitizes people to the tragic consequences of bigotry. Although
the Holocaust occurred just half a century ago, already there is a pseudointellectual movement
denying that Jews were systematically murdered by Nazis." Nationally known figures, such as
presidential candidate Patrick Buchanan and Nation of Islam leader Louis Farrakhan, have
expressed their disbelief that Nazis tried to commit genocide against the Jews. 8 The
dissemination of this view by influential figures has infected the thoughts of ordinary Americans.
According to a 1993 poll, twenty-two percent of the United States adult population thought that
"it seemed possible the Holocaust never happened," and another twelve percent did not know if
the Holocaust was possible. 9
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Tsesis, Alexander. "The Empirical Shortcomings Of First Amendment Jurisprudence: An
Historical Perspective On The Power." 40 SANTA CLARA L. REV. 729. 2000. Web.
December 07, 2016.
<http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1309&context=facpubs>.
incidents of racism in the United States. "That the legislative remedy might not in practice
mitigate the evil, or might itself raise new problems, would only manifest once more the paradox
of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal
with obstinate social issues."76 Legislatures cannot be absolutely certain that enacted laws will
eradicate the blight of racism, but the preservation of democracy and human rights requires the
adoption of laws prohibiting violent forms of hate speech.
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A2 Hate Speech DA: Prohibiting the expression of values-even offensive ones--undermines democratic, non-violent
resolution to conflicts.
Baker, C. Edwin. "Hate Speech." Penn Law, Public Law and Legal Theory Research Paper
Series. March 12, 2008. Web. December 07, 2016.
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043.>.
Fourth, prohibiting the expression of any values even the most offensive views such as
expression that denies democratic values or calls for violent or illegal actions in the context of
discourses where verbal responses are possible is likely to reduce the democratic cultural
selfunderstanding that conflicts are to be dealt as a political rather than violent struggle. This
selfunderstanding, as suggested earlier, helps decrease the likelihood (without eliminating the
danger) that racism will be expressed in overt violence. This is basically Ralf Dahrendorfs
vision that the idea of democracy is not to embody the naive goal to eliminate conflict but rather
to move societys inevitable real conflicts from the plane of violence to the plane of politics.28
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Habermas NC
Jurgen Habermas, a prominent philosopher borrowing from the tradition established by
the Frankfurt School, revolutionized our notions of ethics, discourse, and communication.
Habermas developed a robust theory of communicative action and discourse ethics that describes
how particular communities come to reach the moral point of view. The first step in his
argument is that knowledge of ethics is contingent on social circumstances. As such, the result is
that each community of speakers comes to a set of different norms that lead to the good life.
Since these sets are incommensurable, none of them can be truly normative. This means other
theories of justice fail since they posit a universal good that abstracts from all contexts. In this
sense, moral subjects must participate in discourse to come to a mutual consensus on the good,
insofar as they cannot be a priori principles absent social context. Since there are different
conceptions of the good, participants must justify their version and present it to an audience.
These discourses are predicated on equal participation. This is because there would never be
mutual consensus if one view was actively excluded from the discussion. The agreements could
no longer be binding or universal since others did not have the chance to combat those claims.
There are two contention-level claims the negative can make: either, a) certain forms of
speech defeat the ability to reach consensus or b) certain forms of speech do not treat all
members with equal consideration. In addition, arguments that appear in the Critical Race
Theory section of this brief can work well underneath this framework, since they note the
distorted arrangements of free speech that hate speech causes.
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Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
equally demeaning speech and symbols.91 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."92 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 fight- ing words doctrine is a
paradigm based on a white male point of view.93 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.94
This response is most obvious when women submit to sex- ually assaultive speech or when the
racist name-caller is in a more power- ful 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 tor- mentors 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.
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Lawrence III, Charles. "If He Hollers Let Him Go: Regulating Racist Speech On Campus." Duke
Law Journal, Vol. 1990, No. 3. June 01, 1990. Web. December 03, 2016.
<http://www.jstor.org/stable/1372554?seq=1#page_scan_tab_contents>.
and misdirects the government operates in the market- place 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.143 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.'44 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.145 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. 1
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Wright, R.G. "Traces Of Violence: Gadamer, Habermas, And The Hate Speech Problem: III.
Hermeneutics And Critique I." 76 Chi.-Kent. L. Rev. 991. December 01, 2000. Web.
December 04, 2016.
<http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3310&context=cklawrevi
ew>.
invective are unlikely to ratify their own denigration. Epithet hurling is typically not intended to
persuade some uncommitted middle ground of public opinion or even to reinforce the views of
confirmed racists in the audience. It is typically not intended to persuade anyone, including the
speaker, of anything, to prepare the way for such persuasion, or to legitimize and reinforce any
set of social beliefs.116 Epithets do not, in any sense, invite discourse.'17
*Ellipsis from source
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Gelber, Katharine. "Freedom Of Political Speech, Hate Speech And The Argument From
Democracy: The Transformative Contrib." Contemporary Political Theory, Volume 9,
Issue 3, pp 304324. August 10, 2010. Web. December 07, 2016.
<http://link.springer.com.proxy.library.emory.edu/article/10.1057/cpt.2009.8/fulltext.htm
l>.
is probably right that that country has legal restrictions on anti-Semitic speech, which are not
permissible in the United States, whose extremely protective stance towards hate speech is not
appropriate for all other contexts (2006, p. 1315; 2008, p. 31). I doubt that the context in the
United States is sufficiently distinct to foreclose entirely the possibility that a hate speech policy
is warranted on the grounds of the distinct harms of the hate speech. This point is conceded by
others, including recently by Waldron (2008, pp. 4244). But, my point here is that the
vagueness and generality vital to Nussbaums framework are distinct in a crucial way from the
abstraction identified earlier in Habermas framework, and the two are not to be confused. I
argued earlier that Habermas argument is deliberately unspecific in relation to concrete
decisions in moral choices, that it precludes a normative version of the good life and that it
concedes inequality of resources. Nussbaums argument by contrast makes explicit claims about
the minimum requirements that must be established before an individualbased conception of the
good life can be sought. Therefore, Nussbaums proscription of a normative version of the good
life applies only once the capabilities threshold has been attained. If, and to the extent to which,
it is possible to establish that hate speech harms the development of individual capabilities in
ways that prevent individuals from becoming capable of constructing and implementing their
own conception of the good life, there are grounds for its regulation. Thus, we arrive at a
powerful and meaningful justification for the regulation of hate speech, even in a context where
political speech is conceived broadly and granted a generous mandate of protection. We are
required to take seriously the risks to social justice of some speech, and to consider some kind of
institutional response to that speech that would permit the speech conducive to the development
of individual capacities, and to processes of democratic legitimation, still to occur. This is a
sophisticated argument permitting a selective approach to speech regulation, by examining what
speech does in and for peoples lives, and recognising that some speech can do bad things. This
justification for the regulation of some speech pertains only to that speech which imperils the
development of individual capabilities, and thus, and in so doing, endangers the real and tangible
ways of the processes of democratic legitimation that characterise public discourse. To be sure,
capturing speech that does this, and differentiating it from speech that does not, is a difficult task.
A critic may argue that my argument opens up a huge potential for the restriction of speech. But,
if we take seriously the idea that regulable speech is not speech that simply offends someone or
hurts their feelings, but actually impairs their realisation of a good human life in substantive
ways, I submit that the range of regulable speech is not as broad as may seem.
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Safe Space NC
The safe spaces NC argues that because the only way safe spaces operate is by restricting
free speech since they require certain guidelines for speech, then the judge should negate to
maintain these safe spaces. This NC allows you to make a few key arguments. One possible
contention is a contention about improving minority graduation rates. To do this you should
utilize the Tabitha Grier-Reed pieces of evidence that argues that safe spaces allow people to
combat micro aggressions and improve graduation rates for students of color. Additionally, the
Lizette Ojeda piece of evidence argues that safe spaces are able to improve the graduation rates
for Latinx students. Making arguments about graduation will be successful under a utilitarian
framework, because it allows you to claim that even through safe spaces require some restriction
to person freedom it is necessary to increase graduation for minority students. To further this
utilitarian approach, the Jordi Pujol evidence comes into play because it makes arguments about
why its justified to limit or restrict hate speech if it improves overall speech for everyone.
Another possible contention is an argument about safe spaces improving students ability to
create social change. To do this, the Marika Sherwood evidence becomes critical because
Sherwood argues that multicultural safe classrooms motivate students to go on and make future
social change. This argument should be especially persuasive because it addresses the arguments
the aff may make against safe spaces that say safe spaces cloister students making them less
influential. For this contention, I would also use a consequentialist framework as you can argue
that the consequences of safe spaces like promoting future social change justify the free speech
they limit. Other possible frameworks that could work for this contention is Kants categorical
imperative because this framework looks to the motivation of action, making it easy for you to
argue that the motivation behind safe spaces is always more valuable than the motivation behind
maintaining hate speech.
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Fox, Catherine. "(Un) Covering Normalized Gender And Race Subjectivities In LGBT "Safe
Spaces." Sex and Surveillance. 2010. Web. December 06, 2016.
<http://www.jstor.org/stable/pdf/27919125.pdf>.
might counter this normalizing discourse by reconceptualizing queer student spaces as safe(r)
spaces so that we can bring intersectional analyses of oppressions to the foreground of
conversations with LGBT students such that they can engage in the kind of questioning of
"safety" that Pratt describes is necessary for coalition work.
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Slater, Tom. "Conclusion: How To Make Your University An Unsafe Space." Palgrave
Macmillan UK. 2016. Web. December 06, 2016.
<http://link.springer.com/book/10.1007/978-1-137-58786-2>.
You come to university to debate and to learn, not to be told how to behave. The campus rape
panic has created a toxic climate in which dictating to young people how they should think about
sex and what they should do in the bedroom has become completely acceptable. Young men are
not all sex-criminals-in-waiting, and young women dont need to be protected from their clumsy
come-ons. Stick up for yourselves, and call time on consent classes. Down with academic justice
When activists say that academic freedom is a sham, that it props up bigotry and inequality, and
that we should throw it out in favour of academic justice ignore them. They still want academic
freedom they just want it for themselves only. Our entire intellectual tradition is built on the
idea that, if you want your ideas to win the day, you have to make your case and make it well.
Academic justice is the slogan of the sore loser and the lazy thinker. The debate is never over
There are no four words more chilling to intellectual debate than these: the debate is over. As
celebrated as an idea may be, as much as we might cherish a particular social gain, we should
never ringfence it from criticism. When we do, we turn our beliefs into prejudices, inherited
ideas that we believe to be true without really knowing why. But you can never be sure. History
is full of people getting things wrong. Let your opponent speak maybe youll learn something.
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457
January/February 2017
Champion Briefs
458
January/February 2017
Champion Briefs
459
January/February 2017
Champion Briefs
460
January/February 2017
Champion Briefs
461
January/February 2017
Champion Briefs
462
January/February 2017
Champion Briefs
463
January/February 2017
Champion Briefs
464