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Definitions

Free Speech
Defining the scope of Constitutionally Protected Free Speech DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
Alluringly uncomplicated is the proposition that the words of the Constitution, such as "speech," can and should be
interpreted as ordinary language, having substantially the same meaning in constitutional text as they do in
everyday discourse. Those adopting such a view criticize the Supreme Court's obscenity decisions for ignoring the
obvious. If pornography is a form of speech, according to the dictionary or according to ordinary usage, pornography
must be a form of speech for first amendment purposes. If, however, ordinary usage supplies us with the definition
of the word "speech," then what excludes from first amendment coverage the many other activities that plainly are
speech as the word is ordinarily used? Perjury is speech, conspiracy is speech, oral or written fraud is speech,
verbally describing military secrets to an enemy is speech, and calling a bookie to place a bet is speech. Yet none of
these activities has been held to be within the scope of the first amendment. It is especially important here to
distinguish between activities that are within the scope of the first amendment and those that are not, and at the
same time to distinguish between coverage and protection.

Free Speech protects actions along with words DJS


Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
The ordinary meaning of the word "speech" is thus constitutionally over inclusive. It should not come as a surprise
that the term "speech" as commonly used is under inclusive as well. The wearing of an armband in Tinker v. Des
Moines Independent School District, the wearing of a military uniform while performing a skit in Schacht v. United
States, and the improper use of the flag in Spence v. Washington are symbolic activities that one would not, but for
the first amendment, think of as speech. This dual phenomenon of over inclusiveness and under inclusiveness gives
"speech" a vastly different meaning in the first amendment context than it possesses in ordinary usage. Accordingly,
even if a consensus as to the ordinary meaning of the word "speech" existed, the coverage of the first amendment
could not be determined simply by reference to that meaning.

There lies a balance between speech and non-speech that is a fine


line DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]

"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
Distinguishing between speech and non-speech is a constitutional function. The legislative or regulatory function is
to identify a particular harm. Difficulty arises because many of the legislatively perceived harms flowing from
obscenity are present in speech as well as non-speech. Obscenity may offend, degrade the environment, or cause
antisocial conduct,216 The same damage may in most instances be caused by sexually explicit speech as well as
by pornographic non-speech. In drawing the constitutional line, the Supreme Court has placed it somewhere in the
middle of the area of legitimate legislative concern. Often a legislature cannot deal with an entire class of harm
without infringing upon speech as well as non-speech. It cannot regulate speech without making a far greater
showing of need than is currently available on the evidence.217 The effect of the first amendment, therefore, is to
limit the legislative bodies to regulating only part of a problem.

Speech is not protected for what it is, rather for what it does DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
In Roth v. United States,12o and Chaplinsky v. New Hampshire,l2! the Court appears to suggest that utterances or
other conduct that comprise "no essential part of any exposition of ideas"122 are not reached by the ftrst
amendment. Unfortunately, precedent fails to supply examples of such "idealess" utterances. If an utterance exists
that does not contain an idea, it was not the utterance in Chaplinskyl23 or Beauharnais v. Illinois, 124 and it is not
clear whether it was the utterance in Roth since in that case the Court was not passing on the obscenity of speciftc
materials.12s But the questionable origin of the idea-less concept does not alone render it invalid. There may be
examples of idea-less utterances even if the Court failed to identify them. The core principle, detailed in the previous
section, is that speech is protected not for what it is, but for what it does.'26 Speech is protected only because it
contains certain properties. If there are utterances that do not serve the purposes for which speech is protected, or
that do not contain the properties that justify the principle of free speech, there is no reason to place such utterances
within the ambit of the first amendment.

The First Amendment has limitations. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
The First Amendment states that Congress shall make no law . . . abridging the freedom of
speech. While it states Congress, the protections are also against state government and local
public officials from making any law that abridges a persons freedom of speech. However,
simply because the government cannot make a law of this nature does not mean that individuals
are free to say anything that they want to. For example, employers may prohibit certain types of
speech that would not violate a persons First Amendment rights if the employer was not a public
employer.

The First Amendments purpose is not to protect all speech. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Purpose of the First Amendment
The First Amendment was established to help promote the free exchange of ideas and to provide
a form of redress to citizens against their government. Additionally, the First Amendment seeks
to protect unpopular forms of speech. However, certain forms of speech are not protected by the
First Amendment.

The First Amendment does not protect fighting words. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Fighting Words
Government may prohibit the use of fighting words, which is speech that is used to inflame
another and that will likely incite physical retaliation. Likewise, language that is meant to incite
the masses toward lawless action is not protected. This can include speech that is intended to
incite violence or to encourage the audience to commit illegal acts. The test for fighting words is
whether an average citizen would view the language as being inherently likely to provoke a
violent response

The First Amendment does not protect certain forms obscenity or


child pornography. LWZ
HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Obscenity
Most forms of obscenity are protected by the First Amendment. However, there is a high
threshold that must be met in order for obscenity not to be protected, which includes showing
that the language appeals to the prurient interest in sex, that it depicts something that is
considered patently offensive based on contemporary community standards and that it lacks
serious literary, scientific or artistic value.
Child Pornography
Child pornography is an exception to the First Amendments right to free speech and to having to
meet the high threshold test for other obscene works. Speech is not protected if it depicts a
minor performing sexual acts or showing their private parts.

The First Amendment does not protect libel or slander. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Libel and Slander
The First Amendment does not protect individuals from facing civil penalties if they defame
another person through written or verbal communication.

The First Amendment does not protect crimes involving speech.


LWZ
HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Crimes Involving Speech
The First Amendment also does not provide protection for forms of speech that are used to
commit a crime, such as perjury, extortion or harassment.

The First Amendment does not protect threats. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Threats
Speech is not usually protected when it constitutes a threat toward another that places the
target of such speech of bodily harm or death. There are certain exceptions, such as when a

reasonable person would understand the language not to be a credible threat. Additionally,
threats of mere social ostracism or boycotts are protected by the constitution.

The First Amendment does not protect copyright rules. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Violation of Copyright Rules
Intellectual property is protected, including copyrights and trademarks. The Supreme Court has
held that copyright laws can withstand a First Amendment challenge based on the freedom of
speech.

The First Amendment allows speech conduct regulations. LWZ


HG[HG.orgwasoneoftheveryfirstonlinelawandgovernmentinformationsites.Itwas
foundedinJanuaryof1995byLexMundi,alargenetworkofindependentlaw
firms.TheobjectiveofHG.orgistomakelaw,governmentandrelatedprofessional
informationeasilyandfreelyaccessibletothelegalprofession,businesses,and
consumers],nodate,"WhatTypeofSpeechIsNotProtectedbytheFirst
Amendment?,"HG.orgLegalResources,https://www.hg.org/article.asp?id=34258
Conduct Regulations
The government is permitted to make laws regarding the conduct related to speech, such as by
stating when speech may be provided, where it may be provided and how it can be
communicated. Courts generally uphold these types of regulations as long as they are
considered content-neutral and not directed only at prohibiting the expression of certain ideas.
For example, the government may prohibit demonstrations at certain locations, may limit the
size of a poster used for speech and may limit the amount of sound that can be heard at specific
times.

First Amendment Protects Hate Speech


The First Amendment does protect hate speech. LWZ
MichaelMcGough[theLosAngelesTimessenioreditorialwriter],10302015,"Sorry,
kids,the1stAmendmentdoesprotect'hatespeech',"LATimes,
http://www.latimes.com/opinion/opinion-la/la-ol-colleges-hate-speech1st-amendment-20151030-story.html
Also remarkable was the fact that 35% of respondents agreed that hate speech is NOT
protected under the 1st Amendment.
When the editor-in-chief of the student newspaper at Williams College recanted an editorial that
had suggested that some speech is too harmful to invite to campus, she added this
qualification: Students should not face restrictions in terms of the speakers they bring to
campus, provided of course that these speakers do not participate in forms of legally recognized
hate speech.
The problem is that there is no such thing.
As Eugene Volokh of UCLA law school pointed out on his blog in the Washington Post: Hateful
ideas (whatever exactly that might mean) are just as protected under the 1st Amendment as
other ideas. One is as free to condemn Islam or Muslims, or Jews, or blacks, or whites, or
illegal aliens, or native-born citizens as one is to condemn capitalism or Socialism or
Democrats or Republicans.
(Volokhs parenthesis about whatever exactly that might mean points to a different issue: the
defining down of the word hate. Opposing same-sex marriage, a position embraced not that
long ago by President Obama, is sometimes viewed as anti-gay hate speech. So is criticism of the
Catholic Church. Bill Donohue of the Catholic League asserted that a Jon Stewart skit involving a
Nativity scene "ranks with the most vulgar expression of hate speech ever aired on television.")

While the Supreme Court has upheld past restrictions on some


hateful speech, those have been specific instances and they
arent blanket bans on hate speech. LWZ
MichaelMcGough[theLosAngelesTimessenioreditorialwriter],10302015,"Sorry,
kids,the1stAmendmentdoesprotect'hatespeech',"LATimes,
http://www.latimes.com/opinion/opinion-la/la-ol-colleges-hate-speech1st-amendment-20151030-story.html
So where does the idea that the 1st Amendment doesnt protect hate speech come from?
Not from thin air. While the Supreme Court hasn't said that there is a "hate speech" exception to
the 1st Amendment, it has in the past upheld some restrictions on hateful speech.
For instance," Volokh notes, "there is an exception for fighting words face-to-face personal
insults addressed to a specific person, of the sort that are likely to start an immediate fight. But
this exception isnt limited to racial or religious insults, nor does it cover all racially or religiously
offensive statements.
Also, he notes, in the 1952 case of Beauharnais vs. Illinois the court "did ... uphold a group libel
law that outlawed statements that expose racial or religious groups to contempt or hatred,
unless the speaker could show that the statements were true, and were said with good motives
and for justifiable ends.' But this too was treated by the court as just a special case of a broader
1st Amendment exception the one for libel generally. And Beauharnais is widely understood to
no longer be good law, given the courts [later] restrictions on the libel exception.

Hateful speech can be banned in certain circumstances, but it is


still protected by the First Amendment. LWZ
MichaelMcGough[theLosAngelesTimessenioreditorialwriter],10302015,"Sorry,
kids,the1stAmendmentdoesprotect'hatespeech',"LATimes,
http://www.latimes.com/opinion/opinion-la/la-ol-colleges-hate-speech1st-amendment-20151030-story.html
Some hateful speech is unprotected if it crosses over into conduct -- such as the use of a racial
slur to threaten or intimidate someone. And hateful speech in the workplace can create a hostile
environment that the courts have treated as a form of discrimination. (Some courts have also
recognized an analogue to a hostile workplace environment in educational settings, though this
is more controversial.)
Outside those situations, hate speech is protected by the 1st Amendment against abridgment by
the government, including a state university. (As a private institution, Williams College isnt
bound by the 1st Amendment in the way the University of California is. But its policies on speech
have nothing to do with legally recognized hate speech.)
Haters gotta hate," the saying goes. But if they do, their words are protected by the
Constitution -- whatever college students think.

While there is room to argue that hate speech ought to be banned,


current jurisprudence concludes that hate speech is
constitutionally protected. LWZ
LaurenCarroll[PolitiFactstaffwriterbasedinWashington.BeforePolitiFact,sheheld
internshipswiththeTampaBayTimesinSt.Petersburg,Fla.,andtheNewsand
ObserverinRaleigh,N.C.Sheisa2014graduateofDukeUniversity,whereshe
majoredinpoliticalscience],562015,"CNN'sChrisCuomo:FirstAmendment
doesn'tcoverhatespeech,"@politifact,
http://www.politifact.com/punditfact/statements/2015/may/07/chriscuomo/cnns
chriscuomofirstamendmentdoesntcoverhate/
First lets get the obvious out of the way: The concept of "hate speech" -- speech that negatively
targets people based on personal traits like religion or race -- is not addressed in the
Constitution. The First Amendment of the Constitution, included in the Bill of Rights, says:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of grievances."
That may seem cut and dried, but as with the rest of the Constitution, there are nuances to the
concept of free speech. In the course of interpreting the amendment, courts have decided that
certain speech does not fall under protections offered by the First Amendment.
Unprotected speech includes things such as threats, child pornography and "fighting words"
(speech that would likely draw someone into a fight, such as personal insults). But hate speech is
not included in that list.
However, sometimes hate speech can also be considered "fighting words" or a threat. In those
cases, hate speech would be excluded from protections offered by the First Amendment, said
James Weinstein, an expert in free speech at Arizona State Universitys Sandra Day OConnor
Law School.
For example, if someone hurled racial epithets during a heated argument with another individual,
that could be considered both fighting words and hate speech, in which case it would not have
First Amendment protection. But it would be unconstitutional to ban someone from putting those
same words on a picket sign at a protest -- it would still be hate speech, but it wouldnt fall under
one of the unprotected categories.
"With that caveat, the overwhelming understanding is that hate speech is constitutionally
protected in the United States," said Michael Herz, co-director of the Floersheimer Center for
Constitutional Democracy at Cardozo Law. "Indeed, that protection makes this country different
from most other countries in the world."
To his credit, Cuomo later clarified his position and said he was referring to the type of hate
speech that falls under unprotected categories -- specifically citing the 1941 Supreme Court
ruling in Chaplinsky vs. New Hampshire, which excluded fighting words from the First

Amendment. (In the Chaplinsky case, the fighting words were not hate speech; rather they were
"God damned racketeer" and "damned fascist.")
"Of course the First Amendment does not expressly mention hate speech among its six
protections in its text," Cuomo said. "I meant to refer to the relevant case law about the (First
Amendment) to see what is protected. There you quickly find that hate speech is almost always
protected. The keyword is almost. Hate speech can be prohibited; that is why I keep citing the
Chaplinsky case and the fighting words doctrine." (Read his full response on Facebook.)
Even with this clarification, Weinstein said Cuomos argument isnt without holes. If a statute
bans hate speech, it has to be because it counts as a threat or fighting words -- not simply
because it is hate speech. This may seem like a slight nuance, but its important.
In 2002, the Supreme Court ruled that its constitutional for a state to have a statute that bans
cross-burning -- but only if prosecutors can prove criminal intent to threaten. They cannot, for
example, ban a burning cross used only to demonstrate political ideology. In another crossburning case, the Supreme Court ruled in 1991 that its unconstitutional to up the penalty or
charge people with a crime solely because their actions constitute hate speech.
"The fact that something is hate speech or not is irrelevant for First Amendment analysis,"
Weinstein said.
Herz, of Cardozo, added that there hasnt been a fighting words case in the Supreme Court since
Chaplinsky in 1941, and he believes it likely would have a different outcome today.
Of course, reasonable legal minds can disagree on these nuances. Alexander Tsesis, a First
Amendment law professor at Loyola University Chicago, said he believes it can be constitutional
to prohibit hate speech, and the 2002 cross-burning ruling is a good example of that.
Tsesis said the jurys still out on whether or not theres potential for the Supreme Court to ban
hate speech more broadly, noting that theres some potential for laws that prohibit speech that
defames an entire group, such as causing a group injury by saying a false stereotype. Although
Tsesis believes that would be constitutional, he acknowledged that most scholars disagree.
"In the United States, the only two types of hate speech laws likely to survive are those that are
likely to elicit an imminent fight and those that are truly threatening," he said.
Our ruling
Cuomo said, "Hate speech is excluded from protection" under the First Amendment.
The Supreme Court has ruled that certain categories of speech are excluded from constitutional
protection, such as a threat or "fighting words." Sometimes, speech can be both a threat and
hate speech, in which case it would not necessarily have First Amendment protection.
But hate speech on its own -- such as on a picket sign or a blog -- is not excluded from protection.
It may only be incidentally excluded.
Cuomo tried to clarify his point after the fact, giving an explanation similar to the examples we
hashed out here.
But on his specific claim, the jurisprudence works against him. We rate his statement False.

There is no hate speech exception to the First Amendment. LWZ


EugeneVolokh[teachesfreespeechlaw,religiousfreedomlaw,churchstaterelationslaw,
aFirstAmendmentAmicusBriefClinic,andtortlaw,atUCLASchoolofLaw,
wherehehasalsooftentaughtcopyrightlaw,criminallaw,andaseminaron
firearmsregulationpolicy],572015,"No,theresnohatespeechexceptiontothe
FirstAmendment,"TheWashingtonPost,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/05/07/notheres
nohatespeechexceptiontothefirstamendment/?utm_term=.6c42a912bb35
I keep hearing about a supposed hate speech exception to the First Amendment, or statements
such as, This isnt free speech, its hate speech, or When does free speech stop and hate
speech begin? But there is no hate speech exception to the First Amendment. Hateful ideas
(whatever exactly that might mean) are just as protected under the First Amendment as other
ideas. One is as free to condemn Islam or Muslims, or Jews, or blacks, or whites, or illegal
aliens, or native-born citizens as one is to condemn capitalism or Socialism or Democrats or
Republicans.

Though there are some narrow instances where types of hate


speech are banned, hate speech is not generally banned. LWZ
EugeneVolokh[teachesfreespeechlaw,religiousfreedomlaw,churchstaterelationslaw,
aFirstAmendmentAmicusBriefClinic,andtortlaw,atUCLASchoolofLaw,
wherehehasalsooftentaughtcopyrightlaw,criminallaw,andaseminaron
firearmsregulationpolicy],572015,"No,theresnohatespeechexceptiontothe
FirstAmendment,"TheWashingtonPost,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/05/07/notheres
nohatespeechexceptiontothefirstamendment/?utm_term=.6c42a912bb35
To be sure, there are some kinds of speech that are unprotected by the First Amendment. But
those narrow exceptions have nothing to do with hate speech in any conventionally used sense
of the term. For instance, there is an exception for fighting words face-to-face personal
insults addressed to a specific person, of the sort that are likely to start an immediate fight. But
this exception isnt limited to racial or religious insults, nor does it cover all racially or religiously
offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted
fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V.
v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be
permissible. (And, notwithstanding CNN anchor Chris Cuomos Tweet that hate speech is
excluded from protection, and his later claims that by hate speech he means fighting words,
the fighting words exception is not generally labeled a hate speech exception, and isnt
coextensive with any established definition of hate speech that I know of.)

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or
incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the
next few hours or maybe days, as opposed to some illegal conduct some time in the future).
Indeed, threatening to kill someone because hes black (or white), or intentionally inciting
someone to a likely and immediate attack on someone because hes Muslim (or Christian or
Jewish), can be made a crime. But this isnt because its hate speech; its because its illegal to
make true threats and incite imminent crimes against anyone and for any reason, for instance
because they are police officers or capitalists or just someone who is sleeping with the speakers
ex-girlfriend.

Libel laws dont prove a hate speech exception. LWZ


EugeneVolokh[teachesfreespeechlaw,religiousfreedomlaw,churchstaterelationslaw,
aFirstAmendmentAmicusBriefClinic,andtortlaw,atUCLASchoolofLaw,
wherehehasalsooftentaughtcopyrightlaw,criminallaw,andaseminaron
firearmsregulationpolicy],572015,"No,theresnohatespeechexceptiontothe
FirstAmendment,"TheWashingtonPost,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/05/07/notheres
nohatespeechexceptiontothefirstamendment/?utm_term=.6c42a912bb35
The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a group libel law that outlawed
statements that expose racial or religious groups to contempt or hatred, unless the speaker
could show that the statements were true, and were said with good motives and for justifiable
ends. But this too was treated by the Court as just a special case of a broader First Amendment
exception the one for libel generally. And Beauharnais is widely understood to no longer be
good law, given the Courts restrictions on the libel exception. See New York Times Co. v. Sullivan
(1964) (rejecting the view that libel is categorically unprotected, and holding that the libel
exception requires a showing that the libelous accusations be of and concerning a particular
person); Garrison v. Louisiana (1964) (generally rejecting the view that a defense of truth can be
limited to speech that is said for good motives and for justifiable ends); Philadelphia
Newspapers, Inc. v. Hepps (1986) (generally rejecting the view that the burden of proving truth
can be placed on the defendant); R.A.V. v. City of St. Paul (1992) (holding that singling bigoted
speech is unconstitutional, even when that speech fits within a First Amendment exception);
Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008)
(concluding that Beauharnais is no longer good law); Dworkin v. Hustler Magazine Inc., 867 F.2d
1188, 1200 (9th Cir. 1989) (likewise); Am. Booksellers Assn, Inc. v. Hudnut, 771 F.2d 323, 331
n.3 (7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (likewise);
Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973) (likewise); Erwin Chemerinsky,
Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe, Constitutional
Law, 12-17, at 926; Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech
Dilemma, 32 Wm. & Mary L. Rev. 211, 219 (1991); Robert C. Post, Cultural Heterogeneity and
Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988).

The hostile environment harassment law doesnt prove a hate


speech exception and is itself questionably constitutional. LWZ
EugeneVolokh[teachesfreespeechlaw,religiousfreedomlaw,churchstaterelationslaw,
aFirstAmendmentAmicusBriefClinic,andtortlaw,atUCLASchoolofLaw,
wherehehasalsooftentaughtcopyrightlaw,criminallaw,andaseminaron
firearmsregulationpolicy],572015,"No,theresnohatespeechexceptiontothe
FirstAmendment,"TheWashingtonPost,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/05/07/notheres
nohatespeechexceptiontothefirstamendment/?utm_term=.6c42a912bb35
Finally, hostile environment harassment law has sometimes been read as applying civil liability
or administrative discipline by universities to allegedly bigoted speech in workplaces,
universities, and places of public accommodation. There is a hot debate on whether those
restrictions are indeed constitutional; they have generally been held unconstitutional when
applied to universities, but decisions are mixed as to civil liability based on speech that creates
hostile environments in workplaces (see the pages linked to at this site for more information on
the subject). But even when those restrictions have been upheld, they have been justified
precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society
at large, but only apply to particular contexts, such as workplaces. None of them represent a
hate speech exception, nor have they been defined in terms of hate speech.

Hate speech doesn't have a specific definition. LWZ


EugeneVolokh[teachesfreespeechlaw,religiousfreedomlaw,churchstaterelationslaw,
aFirstAmendmentAmicusBriefClinic,andtortlaw,atUCLASchoolofLaw,
wherehehasalsooftentaughtcopyrightlaw,criminallaw,andaseminaron
firearmsregulationpolicy],572015,"No,theresnohatespeechexceptiontothe
FirstAmendment,"TheWashingtonPost,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/05/07/notheres
nohatespeechexceptiontothefirstamendment/?utm_term=.6c42a912bb35
For this very reason, hate speech also doesnt have any fixed legal meaning under U.S. law.
U.S. law has just never had occasion to define hate speech any more than it has had
occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that
people might condemn but that does not constitute a legally relevant category.

While its possible to argue for a change in First Amendment law,


those claims for change should not rely on the undefined term
of hate speech. LWZ
EugeneVolokh[teachesfreespeechlaw,religiousfreedomlaw,churchstaterelationslaw,
aFirstAmendmentAmicusBriefClinic,andtortlaw,atUCLASchoolofLaw,
wherehehasalsooftentaughtcopyrightlaw,criminallaw,andaseminaron
firearmsregulationpolicy],572015,"No,theresnohatespeechexceptiontothe
FirstAmendment,"TheWashingtonPost,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/05/07/notheres
nohatespeechexceptiontothefirstamendment/?utm_term=.6c42a912bb35
Of course, one can certainly argue that First Amendment law should be changed to allow bans on
hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond
with attacks on Americans or blasphemy or flag burning or anything else). Perhaps some
statements of the This isnt free speech, its hate speech variety are deliberate attempts to call
for such an exception, though my sense is that they are usually (incorrect) claims that the
exception already exists.
I think no such exception should be recognized, but of course, like all questions about what the
law ought to be, this is a matter that can be debated. Indeed, people have a First Amendment
right to call for speech restrictions, just as they have a First Amendment right to call for gun bans
or bans on Islam or government-imposed race discrimination or anything else that current
constitutional law forbids. Constitutional law is no more set in stone than any other law.
But those who want to make such arguments should acknowledge that they are calling for a
change in First Amendment law, and should explain just what that change would be, so people
can thoughtfully evaluate it. Calls for a new First Amendment exception for hate speech
shouldnt just rely on the undefined term hate speech they should explain just what
viewpoints the government would be allowed to suppress, what viewpoints would remain
protected, and how judges, juries, and prosecutors are supposed to distinguish the two. Saying
this isnt free speech, its hate speech doesnt, I think, suffice.

Fighting Words
Fighting words, what are they? DJS
Hentoff,Nat.[HistorianandFirstAmendmentscholar]"Speechcodesonthecampusand
problemsoffreespeech."Dissent38.4(1991):5058.
The term fighting words comes from a 1942 Supreme Court decision, Chaplinsky v. New Hampshire, which ruled
that fighting words are not protected by the First Amendment. That decision, however, has been in disuse at the
High Court for many years. But it is thriving on college campuses. In the California code, a word becomes fighting
if it is directly addressed to any ordinary person (presumably, extraordinary people are above all this). These are
the kinds of words that are inherently likely to provoke a violent reaction, whether or not they actually do.
(Emphasis added). Moreover, he or she who fires a fighting word at any ordinary person can be reprimanded or
dismissed from the university because the perpetrator should reasonably know that what he or she has said will
interfere with the victims ability to pursue effectively his or her education or otherwise participate fully in university
programs and activities.

Definition of fighting words. LMW.


Dower,Benjamin(B.S.,TheUniversityofTexasatDallas,2009;J.D.expected.The
UniversityofTexasSchoolofLaw,2012)TheScyllaofSexualHarassmentandthe
CharybdisofFreeSpeech:HowPublicUniversitiesCanCraftPoliciestoAvoid
Liability.THEREVIEWOFLITIGATION[Vol.31:3.2012.
Fighting words is a category of speech to which normal constitutional protections do not apply. ' In Chaplinsky,
the Supreme Court held that words "likely to cause a breach of the peace by the addressee" were not
protected.'^^ However, the Supreme Court has narrowed the category somewhat in the decades that have
followed. In Brandenburg v. Ohio, the Supreme Court held that the speech is not covered by the fighting words
exception unless the "advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action."'^^ In Cohen v. California, the Supreme Court clarified that the fighting words
needed to be made directly to the addressee.'^^ Finally, in two subsequent decisions, the Supreme Court
specified that a breach of the peace, as applied to the fighting words doctrine, needed to be 1 78 defined
narrowly. To constitute fighting words, the speech must provoke more than a mere public disturbance, but
rather be an invitation to violence.'^^

Restrict
Content-based speech regulation is unconstitutional but contentneutral regulation is not necessarily. LMW.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
Speech regulations fall into two categories: content-based or content-neutral. Content-based regulations of
speech are those that limit speech based on its subject matter or viewpoint.26 Examples include regulations
that prohibit hate speech,27 restrict the broadcasting of sexually explicit television programing28 or ban access
to violent video games.29 Regulations that restrict speech based on its content raise the specter that the
government may effectively drive certain ideas or viewpoints from the marketplace.30 Thus, content-based
regulations have a high propensity to run counter to First Amendment policy, for above all else, the First
Amendment means that government has no power to restrict expression because of its message, its ideas, its
subject matter or its content.31 Preventing governmental restrictions is of utmost importance because [t]o
allow a government the choice of permissible subjects for public debate would be to allow the government
control over the search for political truth.32 Content-neutral regulations limit speech irrespective of its content,
generally mandating the time, manner, or place in which speech can take place.33 Examples include
regulations that ban billboards at business locations,34 only allow canvassing between the hours of 9 AM and
5 PM35 or forbid leafleting on public streets and sidewalks.36 These types of regulations only limit the
availability and use of particular mediums for speech, meaning that there should be alternate mediums which
remain open for the speaker to transmit her message to the public.37 As such, these types of regulations are
more apt to accord with the First Amendment prohibition against restricting specific messages from entering
the marketplace of ideas.38

Content-neutral regulation can be unconstitutional if it severely


limits a groups ability to send a message.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
In both Button and Brown, three key elements appear to trigger strict scrutiny of a content-neutral regulation.61
The first key element is that the regulation burdened political speech: the speech of those who advocate civil
rights and socialism, respectively.62 Political speech is highly revered in a republican form of government
because the free exchange of such ideas enables the electorate to be well informed.63 The second key
element was that a significant opportunity for speech was severely burdened in these cases: speech through
litigation in the first case and through association in the second.64 The opportunity was significant because the
medium targeted was effective and distinct. No alternate medium could equivalently target the same audience
and retain the same nature of the communication.65 Handing out a leaflet would not vindicate civil rights as
litigation did, whereby all violators within a respective jurisdiction would be required to acknowledge and
adhere to the message.66 Likewise, political party association is unique in its ability to enable participation in
politics and elections. The burden was severe because it largely foreclosed the targeted medium from use.67 A
seminal group that undertook civil rights litigation, the NAACP, was completely barred from doing so in all
instances, save the few in which it had a financial right or liability.68 Economic support is vital for a political
party bound and gagged: free speech on university campuses 154 national lawyers guild review to sustain its
existence.69 Severely burdening a significant opportunity for speech kept the message from reaching the
public.70 The third key element was that this burden affected one group or idea far more than all others subject
to the regulation.71 Racial minorities would be precluded from expression more than the majority.72 Similarly,
Socialists would be dissuaded from association more than members of mainstream political groups.73 What is
important is not simply that the regulation keeps messages from reaching the public, but that it has a disparate
impact. It keeps only certain messages out while allowing others to come into the marketplace of ideas.74 In
this vein, the content-neutral regulation operates like a content-based regulation because only certain
messages are burdened.75 When taken together, these three elements result in the prevention of certain
political ideas from reaching the electorate. Such selective prevention poses a substantial risk to the integrity of
self-government.76

Obscene Speech
Affirmative Action is put down by biased studentswhich takes
away from minorities educational opportunities DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
To begin with, different voice carry different weight; some voices are heard better than others; some voices are
foreclosed before even speaking. For example, it is one thing for my white male colleague to say As a heterosexual
white man I believe that persons of any sexual orientation should be equally protected under the law. It is entirely
other matter for someone to say, As a lesbian I believe that persons of any sexual orientation should be equally
protected under the law. Obviously, the lesbian is biased while the white male heterosexual is not, right? If the white
man says I feel victimized by affirmative action, the media and many of those in political power listen and validate
his experience, whereas if an African-American female says I feel victimized by capitalist patriarchy not only will
she not be quoted in the news and not validated, she will be blamed for her failure to succeed.

Topic Analysis One


Daniel J Smith
This topic brings up a host of compelling arguments that date back hundreds of years and
to the beginning of the United States. To understand how to effectively argue this topic we first
need to look at what the debate is going to be framed around, the resolution. In my opinion, the
authors of the resolution are wanting debaters to argue should speech be limited in some
circumstances and what are the limitations of the First Amendment? Both of these
interpretations provide ample ground to debate, and a large amount of resources for both sides
exists. Another great part of this topic is the balance that it presents. From my research this topic
seems to be one of the most balanced in some time. No matter what side you may land on, there
are great arguments to be had.
Taking a deeper dive into the topic, we can begin to notice some key words in the topic
that are going to be integral in argumentation. In addition, a few other definitions might also be
helpful for this topic. The first and one of the more important is that this topic is only applicable
to public universities and colleges in the United States. This is a key distinction because the
federal government has different jurisdiction over public that it does over private institutions.
This clarification helps weed out arguments of religious suppression by the government which
would be a violation of rights. Also this is key because now there are going to be two different
camps of people based solely on the status of their university with the government being public
and private. This difference could become a key difference in the education system of America
because the speech patterns of students is not equal across the country. This difference in
speech based solely on where you go to school is unjust. Another important word is restrict.
This is so critical, because there are many ways to restrict an action, but for the fairest
interpretation, a curtailment of some form of speech will be the best. Looking at the end of the
resolution, we see the phrase constitutionally protected free speech. This small phrase is going
to be relevant in the debates because it rejects a lot of negative or hate speech; however,
surprisingly, a lot of various forms of harmful speech are protected by the Constitution. This also
limits the debate into which arguments are going to be topical or relevant to this particular
debate. This also links more into philosophical frameworks and rights based cases which will
provide for a more unique debate. Finally, this wording opens up all First Amendment Supreme
Court cases that that have happened in the past, because they are all interpretations of the
Constitution, so they are both topical and really helpful.

Along with some of the unique phrases included in the actual resolution, the basic
knowledge of a few others is going to be very instrumental to success on the topic. The first key
term is going to be fighting words, which comes out of a Supreme Court decision from 1942.
While first being ruled unconstitutional, the courts have changed their minds throughout history
and fighting words, words that cause uproar or negative action, can be included under the First
Amendment. These fighting words are usually racial slurs, sexual advances or speech insisting
violence. This is important to understand because a lot of protected modern hate speech stems
from this term. The second and probably most confusing is non-speech, which is a very unique
idea. The whole premise is that words carry meaning to some, and the meaning is more
important than the actual word. To some groups of people, a word like cracker is a racial slur,
but to others it is just a tasty snack. The duality of the meanings is worth noting. This is where
non-speech happens, when a message has an alternate, offensive meaning to a group of people.
This non-speech is protected by the First Amendment, which is a key provision of this resolution.
This being included under the Constitution provides a plethora of unique case arguments that are
going to be unique and specifically looking at the issue of hate speech.
Overall the topic seems to provide a good mix of arguments for all kinds of debaters to
argue. Understanding the basic elements of the arguments around free speech is going to be
helpful. I would highly recommend reading case decisions such as Tinker v. Des Moines,
Hazelwood. v Kuhlmeier, Bethel v. Fraser, and Morse v. Fredrick. All four of these cases provide
background that will help you conceptualize the topic and argue it better. Use your free speech
and argue your heart out on this topic, because this time your voice really matters.
Despite the amazing balance of this topic, it can never be perfect, and in my opinion, the
affirmative has the slightest advantage if one is to be had. The reasoning: you are not curtailing
one of people's most sacred rights that they have. However, this little advantage is not going to
win you the round, but a good understanding of the affirmative case position will.
When taking a first look at this topic, we notice the amount of breadth that the affirmative
side has to argue, but upon a deeper look it diminishes. As I talked about above, the First
Amendment provision is significant because it will help ward out a lot of harassment speech,
which will be a key negative concern. The best affirmatives are going to realize that universities
and colleges are essentially small microcosms of the real world and still subject to the
government's regulations. With this key idea in mind it would make no logical sense to diminish a
persons speech on a small arena, college, yet allow the same person total free speech outside of
it. This logically fails the basic ideals of fair treatment under the law, which is a key pillar for the
affirmative to stand on. Noting these key pillars will become more important in your rounds,
because this is how you want to frame the round for the best affirmative debate. If the negative

concedes that there is no substantial difference between the university and public, the
affirmative is in the perfect place to win the debate. Having a key understanding of how this logic
works is going to be very helpful for the affirmative.
With the basic underpinnings of the resolution in hand we can move now onto the
affirmative value structures that would provide for the best debatability of the current resolution.
The first value I want to discuss is justice, but instead of the same old flavor of it we will be using
John Rawls' version of it. Rawls believes that justice is fairness, and that all people need to be
treated fairly for justice to be had in a given society. The reasons I want to discuss Rawlsian
justice again goes back to the positioning for the affirmative. We need to make sure that all
people are given the same rights to speech no matter who they are or where they may be at a
given time. It would not be fair for the government to suppress your right to speak in a school,
yet allow you to speak freely out of it. One of the best examples of this logic is in Tinker v. Des
Moines, where 3 children all wore armbands with peace signs to protest the Vietnam War. The
Supreme Court affirmed that these students had the right to do this, and when the school
stepped into make them remove the bands, it was a violation of their rights. This affirms the idea
that there is no discernible distinction between a school and the open public with respect to free
speech. Overall, justice is so vital to the affirmative because it wants to make sure that all people
have the equal right to express whatever they would like to. A direct limit to your right to free
speech by the government can only cause more problems. We can see through historical
examples, mainly during the civil rights era when government suppression of speech is
degrading. Though it will not happen to the same extent on college campuses, many similar
effects can be felt on campuses that have tried to limit students access to free speech. To best
protect citizens justice needs to be preserved, making it a key affirmative value.
Besides the value of justice, I think liberty is going to be a good and well used value for
this topic. Liberty is essentially a persons basic free will to act as he or she would like to do so,
without having to always fear interaction by the government. Another great benefit of the value
of liberty is that it is one of the three basic natural rights that are ingrained into our modern
society. These most fundamental rights also have very direct ties into the Constitution which
make supporting this value better if you have a very heavy constitutional rights theme in mind.
One reason you might want to prefer the value of liberty to that of justice is because it is a more
individual approach of giving people there dues. This can turn into a very strong case because
this topic is so individualistically focused, so having a more personal value might be of some use.
In addition, the value of liberty is broader and more applicable in a good sense to all of the
different forms of speech. As we noted, speech is not just words, it can be so much more:
symbols, actions, and beliefs. All of these alternate ways of looking at speech all come from

landmark Supreme Court rulings, and thus, are topical to todays debate. Liberty is great on this
topic because it covers all of these extra areas as seen in the court decisions. The final reason I
like the value is because it is easily measurable in a society, because it is so individual focused.
As long as all people are free from the government's burden, then they are getting their due
rights, but if the government tries to restrict the usage of their individual rights, it is not. Liberty
serves as an alternate to those that would like a more individual focused, rights based, or
alternate value. Be prepared to both argue for liberty and defend it, because I anticipate the
usage a lot in rounds.
Now that there is a clear baseline and trajectory for the general cases that we have in
mind it is time to move on to the criterion level. The first is going to be the respecting of due
process, which would best go with the value of justice. The basic principles behind this value
criterion are that the state or government must respect all rights that are given to you, and the
elimination of those rights is going to be unjust. For this to work best you first need to observe
that the university/college is a direct extension of the federal government. This is important
because we to make argument that the government is violating your Fourth Amendment rights,
due process. The reason due process is so important is because it is a check on the federal
government and the large amount of power that the government has. Finally, this value criterion
provides for the most clash in the debate round because it is completely antithetical to what the
negative is going to try and run. It also establishes that any limitation of free speech is going to
be a direct violation of due process, so this criterion cannot be flipped to the other side of the
round. Overall, due process serves as a good value criterion to make sure that the federal
government is going to be fair and give all people their dues.
The second and more unique criterion I want to discuss is the market place ideas, which is
loosely based on the ideas of a free market economy. The basic provision for this criterion is that
people should be able to say and discuss whatever they like, and through this discourse,
negativity will be lessened. The best way to think about this value criterion is with a bushel of
apples, with most being fresh and delicious and a few being rotten. If the apples were to go out
for sale, eventually all the good ones would be sold and the few bad ones would not, eventually
disappearing. This is essentially what happens in the market place of ideas; the bad ideas slowly
get eliminated. The way in which this happens is even more topical, which in turn is great for
debate. Education is the way. Negative ideals and beliefs are eliminated when people become
more educated and through academic discourse. When the government comes in and censors
what can and cant be said in the schools, then this market place of ideas slowly closes and more
negative and harmful beliefs creep into or remain in the society. This criterion provides a way of
establishing fairness in how people are treated, and it also serves as a great way to counter one

of the most basic arguments that is presented by the negative speaker. Overall, I think that the
market place of ideas is going to be one of the best used criteria available on this topic.
Finally, I want to address one main point that the affirmative can use that will be very
beneficial to them, promoting social discourse. The reason that schools were created was to
challenge ideas and create new thought. Think back to Platos republic, a school where the arts
and philosophy really begin to flourish because such a high value was placed on this discourse.
When universities start to censor the language of both students and faculty this culture that
wants to create new discourse is going to be eliminated. All types of language need to be
allowed to create this system where teachers can teach freely without the fear of having some
form of punishment in their class. Furthermore, the terms of hate speech are so subjective which
can lead to an era of McCarthyism which only furthers the devolution of ideas. Allowing real
debate to happen is key to challenging the beliefs of people. If we try to shelter people and never
let them never be offended or take a position on some type of issue, then a society of weak
people that cant make an opinion has been created, and that is counter to what we need in
society. Overall, free discourse is key to making society stronger and challenging opinions both in
and out of the classroom.
An important consideration about this resolution is its a flipped resolution, so the negative
is not the status quo really, rather it is advocating change. With that in mind we are going to
begin to dissect the negative position. The negative has some really interesting and fresh
arguments, but it is important to first note that you have to curtail some version of the free
speech that is protected. However bad that might be, there are examples of historical precedents
and a lot of speech that is not positive is being protected. There are two important ways for the
negative to frame the round. First, the historical precedent for limitations of speech has proven
to be constitutional and beneficial for students. Morse v. Fredrick sets this precedent as a
response to a scenario in which a student held up a sign that said, Bong hits for Jesus and the
school removed the sign. The Supreme Court ruled that this kind of material could be removed
on school grounds, but it would be allowed out in the general public. This difference in where
speech is allowed is in complete support of the negative side. Schools are a unique ground
created so that people can be educated in an environment that leads to student development.
The second way the negative needs to frame the round is one of protection of minority students.
Hate speech, sexual advances, and inappropriate comments towards others are all harmful to
the students and take away from education, but are protected. A removal of these kinds of
speech would only be beneficial to the protection of individual students rights and overall
education. Framing the round for the benefit of students is so important because the
governments goal is to protect them. If the government is allowing for the harassment of

students, then it has failed its job. Overall, the negative has a good stance on protection of
individuals and historical precedent to work from.
The most common, yet one of the best negative values for this upcoming topic is going to
be justice. Justice is going to be a great value for the negative, first, because the variety of
criteria that will work with it will be really helpful in framing the debate in whatever way you
would like to do so. More importantly, it is all about giving each person his or her due, and the
best way to illustrate this point is through the civil rights movement. This era is the root for the
curtailment of freedom of speech in the American culture, and historically affected minorities.
Hate speech in this time was a common affair and broadly socially acceptable. However, as times
have evolved schools have tried to limit the speech that is coming out of their kids' mouths.
Stanford and University of Wisconsin were two of the first schools to do this. The main
justification was the protection of the students and their access to educational value. Prior to
these changes, these university students were not getting the same dues that every other
person was getting in the university; they were being harmed. Overall, justice is a solid value if
you want to focus on what each college student is due as part of attending the university.
The second and more unique value that I believe would be a good option is that of
education. Students come to universities to better their education and ultimately become a
better person. However, hate speech and other forms of free speech actively harm the students
and lead to a decrease in the educational quality at the universities. This is why some of the
United States' top educational institutions are some of the first to significantly curtail the free
speech of their students. They realize there is a causal link between the two, and harmful speech
leads to a worse education. One of the main reasons that this happens is because students of
minority groups and females stop attending classes that have high tendency to use harassing
speech. When the student stops going to going to class just because of the language around
them they can no longer continue their educational growth. Interestingly, one researcher has
actually been able to find that these uses of intolerant language actually stunt growth in learning
in the brain of students. Universities' goal is to create an environment that fosters the learning
process of people in it, not one to take it away. Overall, education is a legitimate value because it
focuses on the basic principles of students and institutions and their goals.
As we move onto the value criterion options for debate I want you to keep justice in the
back of your mind as we go through the criterion of The Veil of Ignorance. The veil is a
philosophical concept discussed by John Rawls. The basic underpinnings are as follows.
Essentially everyone in society is behind a curtain, seated in the original position, and doesnt
know who they are in the real world beyond the veil. Because of this lack of knowledge, a person
will come to a decision that will benefit all people not just one specific class or group of people.

This is applicable to this topic because people hate to be insulted in any form and will choose not
to expose themselves to that speech. If no one knows what race or gender they may be in the
world they will want to choose a society that limits the speech of the citizenry for fear of being
one of the affected minority groups. This approach creates true justice in a society by eliminating
the self-interest bias that each person has inside of them. When this bias is eliminated what is
left is the option that is most beneficial to society, not just the self. This then leads to justice
because each person in that society is equally protected under the law, and no one is going to be
harmed. Each persons dignity, liberty, and rights are all going to be upheld. Overall, the veil
serves as a great, unbiased way to ascertain what people in a society would do if there was no
implicit bias. They would curtail free speech.
The second criterion that I want to talk more about specifically focuses on the harms that
are presented through open discourse. The criterion that would be most instrumental is
minimizing disproportionate harm. The reason that you might want to use this criterion is that
it is much more quantifiable in terms and much more direct at addressing the problem. First, we
need to observe that the majority of hate speech is aimed at minorities, especially people of
color, and women. These two demographics suffer the bulk of harmful speech on our campuses.
To create a fair society on the campus we need to either increase the hate speech towards white
males, or, more appropriately, simply eliminate the targeting of other groups. This is very similar
to other ideas of equality, but is more specific in its intentions. Finally, creating a society in which
harms are eliminated for the lower classes will begin to empower these groups out in the rest of
society. Colleges have proven to be the basis of nationwide change, and creating a culture of
minimizing disproportionate harms will further the objectives of equality. Overall, the goal is to
treat all people fairly and equally, and this criterion's main goal is to do exactly that.
Finally, an important point that the negative is going to have to overcome is that their side
of the resolution is censoring information from the schools and students. Many see such
censorship as something to be avoided, and it is inherently bad. It shouldnt be and its not Keep
in mind that censorship happens all the time. Your rights to speech are different depending on
where you are. The right to free speech is not absolute. The Supreme Court has affirmed this
belief in its landmark decision of Hazelwood v. Kuhlmeier, a case in which the court ruled that
schools can limit speech to protect the academic environment. While this may be a form of
censorship, it is beneficial to the well-being of society. The same logic applies in airports where
you cannot scream bomb or fire because this will harm the group as a whole. Censorship in
some forms is actually justified in some circumstances. The other provision for this curtailment of
rights and not censorship is it is not going to be a blanket for of elimination of speech. Only a few
and small circumstances are going to be eliminated or punishable. It is important to note that

people can say whatever they want. However, there is just going to be some form of punishment
for the words that they might be saying. The universitys main goal is to help the student culture,
not to take away from the fragile and unique community that is created from open discourse.
Overall, censorship could be an easy position to refute because it is not true censorship and
protection of the students and their education is the first goal by these institutions.

Aff Evidence

Restrictions of Free Speech Now


Universities currently severely restrict speech. LWZ
CliffMaloney[ExecutiveDirectoratYoungAmericansforLiberty],Jr.,10132016,
"CollegesHaveNoRighttoLimitStudents'FreeSpeech,"TIME,
http://time.com/4530197/collegefreespeechzone/
University campuses are now home to a plethora of speech restrictions. From sidewalk-sized
free-speech zones to the criminalization of microaggressions, Americas college campuses look
and feel a lot more like an authoritarian dictatorship than they do the academic hubs of the
modern free world. When rolling an inflated free-speech ball around campus, students at the
University of Delaware were halted by campus police for their activities. A Young Americans for
Liberty leader at Fairmont State University in West Virginia was confronted by security when he
was attempting to speak with other students about the ideas he believes in. A man at Clemson
University was barred from praying on campus because he was outside of the free-speech zone.
And a student at Blinn College in Texas abolished her campus free-speech zone in a lawsuit after
administrators demanded she seek special permission to advocate for self-defense.

Academic freedom is under attack at universities from multiple


sources. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
No great universities exist in the world without a deep institutional commitment to academic
freedom, free inquiry, and free expression. For the past 60 years, American research universities
have been vigilant against external and internal attempts to limit or destroy these values. The
First Amendment scholar Geoffrey Stone has noted that free expression, in one form or another,
has been continually under attack on campuses for the past 100 years. Today, these core
university values are being questioned again, but from a new source: the students who are being
educated at them.
What explains this recent outcry against free expression on campus? Multiple possible
explanations exist, of course, including the hypothesis that parents have coddled a generation of
youngsters to the point where students feel that they should not be exposed to anything harmful
to their psyches or beliefs. Whether or not these psychological narratives are valid, there are, I
believe, additional cultural, institutional, and societal explanations for what is going on. And the
overarching theme is that todays youngsters, beginning in preschool, are responding to living in
a contrived culture of fear and distrust.

Polls demonstrate that students are beginning to think of the First


Amendment as outdated. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
Theres hardly consensus among students on the forms or appropriateness of these restrictions
on speech. Today, nearly half of a random sample of roughly 3,000 college students surveyed by
Gallup earlier this year are supportive of restrictions on certain forms of free speech on campus,
and 69 percent support disciplinary action against either students or faculty members who use
intentionally offensive language or commit microagressionsspeech they deem racist, sexist,
or homophobic. According to a free-speech survey conducted by Yale last year, of those who
knew what trigger warnings are, 63 percent would favor their professors using themby
attaching advisories to the books on their reading lists that might offend or disrespect some
students, for examplewhile only 23 percent would oppose. Counterintuitively, liberal students
are more likely than conservative students to say the First Amendment is outdated.

Recent examples demonstrate that the chilling effect of free


speech mirrors the McCarthy era. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
Consider a few recent cases: Brown University, Johns Hopkins University, Williams College, and
Haverford College, among others schools, withdrew speaking invitations, including those for
commencement addresses, because students objected to the views or political ideology of the
invited speaker. Brandeis University began to monitor the class of a professor who had explained
that Mexican immigrants to the United States are sometime called wetbacks, a comment about
the history of a derogatory term that outraged some Mexican American students. Black students
at Princeton University protested against the racial climate on campus and demanded that
Woodrow Wilsons name be removed from its school of Public and International Affairs. The
chilling effect of these kind of restrictions on speech were not lost in 1947 on Robert Hutchins,
the president of the University of Chicago, who opined during the McCarthy period: The question
is not how many professors have been fired for their beliefs, but how many think they might be.

Even left-leaning speech is under attack at campuses. LWZ


ConorFriedersdorf[staffwriteratTheAtlantic,wherehefocusesonpoliticsandnational
affairs.HelivesinVenice,California,andisthefoundingeditorofTheBestof
Journalism,anewsletterdevotedtoexceptionalnonfiction],342016,"TheGlaring
EvidenceThatFreeSpeechIsThreatenedonCampus,"Atlantic,
http://www.theatlantic.com/politics/archive/2016/03/theglaringevidencethatfree
speechisthreatenedoncampus/471825/
Or forget big speeches and look to another example of left-leaning speech that is threatened. As
Glenn Greenwald wrote at The Intercept, One of the most dangerous threats to campus free
speech has been emerging at the highest levels of the University of California system, the
sprawling collection of 10 campuses that includes UCLA and UC Berkeley. The universitys
governing Board of Regents, with the support of University President Janet Napolitano and egged
on by the states legislature, has been attempting to adopt new speech codes thatin the name
of combating anti-Semitismwould formally ban various forms of Israel criticism.
He continued:
Under the most stringent such regulations, students found to be in violation of these codes would
face suspension or expulsion. In July, it appeared that the Regents were poised to enact the most
extreme version, but decided instead to push the decision off until September, when they
instead would adopt non-binding guidelines to define hate speech and intolerance.
One of the Regents most vocally advocating for the most stringent version of the speech code is
Richard Blum, the multi-millionaire defense contractor who is married to Sen. Dianne Feinstein of
California. At a Regents meeting last week, reported the Los Angeles Times, Blum expressly
threatened that Feinstein would publicly denounce the university if it failed to adopt far more
stringent standards than the ones it appeared to be considering, and specifically demanded they
be binding and contain punishments for students found to be in violation.
The San Francisco Chronicle put it this way: Regent Dick Blum said his wife, U.S. Sen. Dianne
Feinstein, D-Calif., is prepared to be critical of this university unless UC not only tackles antiJewish bigotry but also makes clear that perpetrators will be punished. The lawyer Ken White
wrote that Blum threatened that his wife would interfere and make trouble if the Regents
didnt commit to punish people for prohibited speech. As campus First Amendment lawyer Ari
Cohn put it the following day, Feinstein and her husband think college students should be
expelled for protected free speech.
For now, no such speech code has been adopted. Does Stanley deny that the powerful, politically
connected forces pushing for it are a threat to speech on campus?
There are still more examples.
Here is a Marquette professor whose tenure was threatened over a blog post.
Two years ago, I wrote about the NYPDs efforts to spy on Muslim students using undercover
agents for no reason other than their religion, an effort that spanned months and produced zero

leads. Anyone who doubts that this abhorrent profiling chilled the speech of an ethnic-minority
group should inform themselves about their understandable reaction to discovering that
government spies were in their midst.

Free speech is under assault on campus from many different


sources. LWZ
ConorFriedersdorf[staffwriteratTheAtlantic,wherehefocusesonpoliticsandnational
affairs.HelivesinVenice,California,andisthefoundingeditorofTheBestof
Journalism,anewsletterdevotedtoexceptionalnonfiction],342016,"TheGlaring
EvidenceThatFreeSpeechIsThreatenedonCampus,"Atlantic,
http://www.theatlantic.com/politics/archive/2016/03/theglaringevidencethatfree
speechisthreatenedoncampus/471825/
To sum up: free speech on campus is threatened from a dozen directions. It is threatened by
police spies, overzealous administrators, and students who are intolerant of dissent. It is
threatened by activists agitating for speech codes and sanctions for professors or classmates
who disagree with 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 sanctionsboth say outright at different times that they are for untrammeled speech
but 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.

Political Change
Student protest can have a significant political impact. LMW.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
Indeed, the effectuation of change through group protests and demonstrations undertaken by students is a
theme in United States history. Student protests at the University of California at Berkeley in 1964 resulted in
the University President being fired and contributed to the election of Ronald Reagan as the Governor of
California.124 Student protests at Colombia in 1968 led to a stop in federal sponsorship of Colombia to
conduct classified weapons research.125 Student protests in 1991 against tuition increases at the City
University of New York made national headlines.126 Also, the September 2013 protest at the University of
Alabama, where students called for desegregation of sororities, made national headlines. 127

Free speech zones prevent political protest. LMW.


TheFoundationforIndividualRightsinEducation(FIRE)(ThemissionofFIREisto
defendandsustainindividualrightsatAmericascollegesanduniversities.These
rightsincludefreedomofspeech,legalequality,dueprocess,religiousliberty,and
sanctityofconsciencetheessentialqualitiesofindividuallibertyanddignity.)
SpotlightonSpeechCodes2011:TheStateofFreeSpeechonOurNations
Campuses.2011.
Many universities have regulations creating free speech zonesregulations that limit rallies, demonstrations,
and speeches to small or out-of-the-way zones on campus. Many also require advance notice of any
demonstration, rally, or speech. Such prior restraints on speech are generally inconsistent with the First
Amendment. From a practical standpoint, it is easy to understand why such regulations are burdensome.
Demonstrations and rallies are often spontaneous responses to recent or still-unfolding events. Requiring
people to wait 48 or even 24 hours to hold such a demonstration may interfere with the demonstrators
message by rendering it untimely. Moreover, requiring demonstrators to obtain a permit from the university,
without explicitly setting forth viewpoint-neutral criteria by which permit applications will be assessed, is an
invitation to administrative abuse.

Open discourse and debate requires free speech. LWZ


CliffMaloney[ExecutiveDirectoratYoungAmericansforLiberty],Jr.,10132016,
"CollegesHaveNoRighttoLimitStudents'FreeSpeech,"TIME,
http://time.com/4530197/collegefreespeechzone/
America is a free-speech zone, period
In grade school, I learned that debate is defined as a discussion between people in which they
express different opinions about something.
Such open discourse was historically encouraged on our college campuses. Universities
exemplified intellectual discussion and debate in America. No one voiced their opinions louder
than students, professors and administrators. They pushed societys limits by admitting women
and people of color, and by encouraging diversity of thought amongst the college community.
Historically, young people flocked to universities to learn more about the world around them, to
encounter people from different backgrounds, to expand their minds and to form their own
opinions.
Unfortunately, things have changed. Recently on college campuses, our open discourse has been
threatened, particularly when discussing politics.

We should be allowed to openly debate politics. LWZ


CliffMaloney[ExecutiveDirectoratYoungAmericansforLiberty],Jr.,10132016,
"CollegesHaveNoRighttoLimitStudents'FreeSpeech,"TIME,
http://time.com/4530197/collegefreespeechzone/
While the current presidential election represents polarizing wings of both the Democratic and
Republican parties, we should be able to openly debate their policies and the direction in which
they plan to take our country if elected. We should be able to discuss the abuse of power within
our government and the consistent violations of our Bill of Rights. We should be able to
participate in the free market of ideas. But our students are being silenced.

Universities promote the idea that you should suppress the ideas
of those who disagree with us. LWZ
CliffMaloney[ExecutiveDirectoratYoungAmericansforLiberty],Jr.,10132016,
"CollegesHaveNoRighttoLimitStudents'FreeSpeech,"TIME,
http://time.com/4530197/collegefreespeechzone/
How have we let this happen in America, the land of the free?
Its because of what our universities have taught a generation of Americans: If you dont agree
with someone, are uncomfortable with an idea, or dont find a joke funny, then their speech must
be suppressed. Especially if they dont politically agree with you.
Instead of actually debating ideas that span topics from the conventional to the taboo, a
generation of American students dont engage, they just get enraged. In doing so, many
students believe that they have a right to literally shut other people up. This is not only a threat
to the First Amendment, but also to American democracy.

Restrictions against safe speech enable prejudice against differing


ideologies. LWZ
CliffMaloney[ExecutiveDirectoratYoungAmericansforLiberty],Jr.,10132016,
"CollegesHaveNoRighttoLimitStudents'FreeSpeech,"TIME,
http://time.com/4530197/collegefreespeechzone/
In their manifestation, safe spaces and free-speech zones at public universities enable prejudice
against unfavorable ideologies. Guised as progressive measures to ensure inclusion, these often
unconstitutional policies exclude new and competing ideas, and are antithetical to a free
academia. In excluding different ideologies, supposedly progressive campus speech codes do
one thing: prevent the progression of ideas. Restrictive campus speech codes are, in fact,
regressive.

Censorship
Government does not have a place to limit any speech DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The case for protecting racist speech against general governmental prohibition or punishment must stand on
pessimism about the ability of a pluralistic and democratic society to censor any form of expression without
degenerating into an attempt to suppress political opposition or cultural differences.' This argument has two
constituent parts. First, government has no acceptable criteria for distinguishing between valuable and worthless
speech. Even a well-meaning censor cannot in principle distinguish between an insult and a good faith assertion
that is controversial and offensive to members of a racial group, such as a speech arguing that affirmative action
has damaged performance in some city offices because blacks with substandard test scores have been hired.
Second, the implementation of governmental criteria will most likely become an expression of the political goals of
the group that controls the censor's office. For example, it has been argued that efforts to suppress racial insults in
universities reflect the political power of minorities in universities controlled by a liberal elite, and that liberals and
minorities should be concerned that the same forms of censorship will be used against them if conservatives gain
control of the universities.

Government censorship leads to a McCarthian state DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
One need only refer to the current controversy about the National Endowment for the Arts sponsorship of "obscene"
artistic displays to demonstrate how likely it is that censorship will be incompetent and politically motivated. 12 Much
of the lingering opposition to prohibitions on pornography stems from memories of government agents seizing
copies of Ulysses and Lady Chatterly's Lover.' 3 The specter of Joe McCarthy and the House Un-American Activities
Committee still haunts our notions of academic freedom.' 4 These bad experiences only confirm in practice what
liberals have long argued in principle: no official orthodoxy should prescribe what citizens may say on any issue.' 5
Within the confines of the Constitution and the law, government holds only to the preferences held by shifting
majorities. The bright side of this tradition is the citizen's broad liberty to express herself; the dark side is the
government's lack of moral principle and authority. Governmental criteria for placing some forms of expression
beyond the pale are suspect not simply because individual censors may be stupid or venal, but because democratic
governments lack permanent commitments to determinate moral values from which a censor could derive
acceptable criteria for regulating speech. Our insistence on free speech stems not so much from optimism about the
emergence of truth from open debate as from realistic pessimism about the character of representative government.
Thus, the argument against regulating racist speech primarily cautions against the precedential effect of permitting
censorship.

Government has no stake in symbolic acts as violation of speech


DJS

Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
These concerns also predominate in the recent flag desecration cases.23 In twice holding that statutory prohibitions
against burning or otherwise mutilating the national flag (a form of protest uniquely offensive to some Americans)
violate the first amendment, the Supreme Court has emphasized the political dangers inherent in sanctioning
regulation of particularly offensive speech. "If there is a bedrock principle underlying the First Amendment, it is that
the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable. '24 The Court reasoned that the special ideological value attached to the flag both gave protected
status to the expressive act of burning the flag and precluded the government from insisting that the flag be
reserved for appro-ed meanings. 25 To justify disabling the government from reserving the flag for certain meanings,
the Court emphasized both the government's incompetence for this task and the dangers of political manipulation.
Again, the government (including the Supreme Court) has no transcendent commitment that justifies prohibiting flag
desecration as a manner of expression. Consequently, any such prohibition must be in furtherance of mere "political
preferences."

Student speech at universities is in a unique niche under the


governments umbrella DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
Speakers in traditional public forums, such as parks and streets, are afforded the most protection; to limit their
speech content, the government must demonstrate a compelling state interest and draft a regulation narrowly
drawn to achieve that end.33 Citizens receive similar protection in limited public forums like government meetings
or theaters; though the government is not obligated to create such speaking opportunities or to keep them open
indefinitely, it is bound by the same standards as apply in a traditional public forum once it does.34 On the
opposite end of the spectrum is the non-public forum, where the government is much freer to limit the expressive
means for which the property can be used, subject only to the requirements that the regulation on speech is
reasonable and not an effort to suppress expression merely because public officials oppose the speakers view.
Tinker, Fraser, and Perry left the Court poised to address the issue of how student journalism fit into the free speech
framework it had established. What kind of forum was a student publication? What level of protection, if any, did
student medias content merit? And how clear or murky of a test would result from the Courts efforts to resolve
these issues? Just a couple of years after Fraser, the nation got its answers to these questions.

Its more offensive to censor racial speech than for it to be heard


DJS

Hentoff,Nat.[HistorianandFirstAmendmentscholar]"Speechcodesonthecampusand
problemsoffreespeech."Dissent38.4(1991):5058.
A black student rose and said that the white student had a hell of a nerve to assume that he-in the face of racist
speech-would pack up his books and go home. Hes been familiar with that kind of speech all his life, and he had
never felt the need to run away from it. Hed handled it before and he could again. The black student then looked at
his white colleague and said that it was condescending to say that blacks have to be protected from racist speech.
It is more racist and insulting, he emphasized, to say that to me than to call me a nigger. But that would appear to
be a minority view among black students. Most are convinced they do need to be protected from wounding
language. On the other hand, a good many black student organizations on campus do not feel that Jews have to be
protected from wounding language. Though its not much written about in reports of the language wars on
campuses, there is a strong strain of anti-Semitism among some-not all, by any means-black students Along with
quiet white liberal faculty members, most black professors have not opposed the speech codes. But unlike the white
liberals, many honestly do believe that minority students have to be insulated from barbed language. They do not
believe-as I have found out in a number of conversationsthat an essential part of an education is to learn to
demystify language, to strip it of its ability to demonize and stigmatize you. They do not believe that the way to deal
with bigoted language is to answer it with more and better language of your own. This seems very elementary to
me, but not to the defenders, black and white, of the speech codes.

College campuses are increasingly adopting very liberal ideals.


LMW.
Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
What has become of the great nation his Publius took to the quill to fight for? There is no better indication of
the current sad state of the First Amendment than the ill treatment of conservative commencement speakers
during this past springs college graduation season.30 Somehow academia has become the friend of the
liberal instead of the friend of the people; a place, as Mayor Michael Bloomberg noted in his commencement
address at Harvard, where a liberal arts education has turned into an education in the art of liberalism.31

When a campus community refuses to let certain speakers they


censor ideas and promote a single ideology. LMW.

Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
As bastions of intolerance, universities are promoting a single ideology instead of acting as welcoming, neutral
forums for debate. In censoring unpopular viewpoints, they rob the marketplace of ideas of its substance and
consequently silence the critical debating practice that our Founding Fathers routinely turned to in ironing out
the nations most complex issues. Mayor Bloomberg added: There is an idea floating around college
campusesincluding here at Harvard that scholars should be funded only if their work conforms to a
particular view of justice. Theres a word for that idea: censorship. And it is just a modern-day form of
McCarthyism.32 This modern-day McCarthyism has run rampant across college campuses. In May,
Condoleezza Rice, former Secretary of State and Provost of Stanford University, backed out of Rutgers
Universitys commencement after a chemistry professor successfully urged faculty and students to oppose her
selection as speaker.33 In response, Dr. Rice wrote: I am honored to have served my country. I have
defended Americas belief in free speech and the exchange of ideas. These values are essential to the health
of our democracy.34 Apparently the Rutgers community disagreed. In 2012, College Republicans at Fordham
University invited Ann Coulter to speak on campus. Even at Fordham, a university located here in New York at
the center of the known universe where I served on the Board for six years, the uproar caused the group
unceremoniously to rescind the invitation.35 In October, former New York City Police Commissioner Ray Kelly
was booed off stage by student protesters at Brown University before he even had the opportunity to speak.36
In response, University President Christina Paxson condemned Commissioner Kellys treatment, writing: our
University isabove all elseabout the free exchange of ideas. Nothing is more antithetical to that value than
preventing someone from speaking and other members of the community from hearing that speech and
challenging it vigorously in a robust yet civil manner.37

Prior restraints to free speech cause serious censorship. LMW.


Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
Prior restraints are a sub-category of regulations on speech. [A] prior restraint exists when the enjoyment of
protected expression is contingent upon the approval of government officials.142 The requirement of a permit
or license to engage in a speech activity, such as a protest, parade, or leafleting, is a form of prior restraint.143
Our history has long acknowledged the threat that prior restraints pose to free speech.144 The First
Amendment was, in part, a reaction against licensing requirements that existed in England.145 The centrality
of prior restraints to First Amendment doctrine is evidenced by William Blackstones definition of freedom of the
press, which was quoted in the Supreme Courts seminal case on prior restraints, Near v. Minnesota: 146 the
liberty of the press is, indeed, essential to the nature of a free state; but this consists in laying no previous
restraints upon publication.147 There are two ways in which prior restraints effectuate the censorship that the
First Amendment seeks to prohibit. First, prior restraints can result in government censorship of ideas because
the government is in a position to screen or suppress ideas before they enter the public arena.148 Second,
prior restraints can result in self-censorship because individuals are deterred from undertaking speech
activities due to the burden and time it takes to apply for a permit.149 So that public discourse is not stifled by
either type of censorship, a free society prefers to punish the few who abuse rights of speech after they break
the law than to throttle them and all others beforehand.150 As a result, prior restraints on speech and
publication are the most serious and least tolerable infringement on First Amendment rights.151 Any system
of prior restraints of expression comes to th[e] Court bearing a heavy presumption against its constitutional
validity.152

Universities around the country violate constitutionally protected


rights by regulating speech. LMW.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
Thus an issue presents itself: a balance must be struck between legitimate government interests and highly
protected and invaluable rights.10 This balance is at the heart of a free speech debate currently confronting
universities and college campuses across the United States. According to the Foundation for Individual Rights
in Education,11 out of 427 universities and colleges, at least 251 have campus regulations that violate First
Amendment rights and at least an additional 152 over-regulate speech.12 Ranked one of the top ten worst
campuses for speech in 2013 is the University of Alabama (University).13 The University has a permit
scheme (UA Permit Scheme) that requires all students engaging in any speech activity on University grounds
to obtain a permit.14 A permit is required regardless of the medium undertaken, be it leafleting or holding a
rally.15 A permit is required regardless of how many students are undertaking the speech activity, be it one or
one hundred.16 After an application for a permit is submitted, it takes up to ten days for the University to grant
or deny the permit.17 The Universitys stated purpose for the permit scheme is to maintain public order by
ensuring student safety, preventing the disruption of classes, and avoiding conflicts between events scheduled
for the same time and place.18 Yet, the impact of the UA Permit Scheme extends beyond maintaining public
order. In April 2013, an anti-abortion student group exhibited a display on University grounds.19 Two days
before the display was exhibited, a prochoice student group found out about this scheduled exhibition and
planned to distribute leaflets while it occurred.20 However, the pro-choice group was told by the University that
a permit could not be granted in time.21 When the pro-choice group then attempted to distribute leaflets
without a permit, the University police threatened arrest.22 Almost immediately, free speech groups and
scholars decried the UA Permit Scheme, declaring that it impedes First Amendment rights.23

Preventing free speech degrades our liberty in other ways. LMW.


Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
This is because, as Madison put it nearly 200 years ago, the advancement and diffusion of knowledge is the
only guardian of true liberty. 38 Nothing is advanced or diffused when we destroy the channels of and
opportunities for open and free communication. And university students and faculty are not the only Americans
who need to be reminded of Publius charge.

Restricting constitutionally protected speech on college campuses


would lead us down a slippery slope to more restrictions. LMW.
Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
The Lefts recent movement actually to amend the Constitution to allow Congress to limit fundraising and
spending on all important political speech is perhaps the most troubling attack on our First Amendment
freedom.43 Such an amendment would rip Pandoras Box wide open, for it could have the domino effect of
allowing further restrictive amendments so vast, unknown, and alarming, that they would surely awaken
Madison from his grave. Such an amendment would prove the truth of Madisons observation in a letter to
Thomas Jefferson: In our Government, the real power lies in the majority of the Community, and the invasion of
private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its
constituents, but from acts in which the Government is the mere instrument of the major number of the
Constituents.44 Despite a liberal majoritys support of such an amendment, it simply does not fit within the
America Madison envisioned.

The Supreme Court has recognized that free speech on campuses is


crucial to the university environment. LMW.
Humrighouse,Dana.(DanaHumrighousehasaJ.DfromChapmanUniversityandaB.S.
fromKentStateUniversity)BoundbytheFirstAmendmentandGaggedby
PermitSchemes:TheConstitutionalRequirementforFreeSpeechonUniversity
Campusesnationallawyersguildreview.2014
However, the right to free speech must also be respected. The First Amendment declares, Congress shall
make no law . . . abridging the freedom of speech . . . or the right of the people to peaceably assemble.6
Although the United States Supreme Court has never adopted a literal interpretation of the amendment
Congress has always been allowed to regulate certain forms of speechthe right has remained highly
protected. 7 Moreover, the Supreme Court has repeatedly acknowledged the heightened import of freedom of
speech and right to assemble on public university campuses, holding, We have long recognized that, given
the important purpose of public education and the expansive freedoms of speech and thought associated with
the university environment, universities occupy a special niche in our constitutional tradition,8 and, further,
[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American
schools.9

College students admit that Americans often fail to listen to


dissenting views. LMW.
GallupPoll.FreeExpressiononCampus:ASurveyofU.S.CollegeStudentsandU.S.
Adults.2016.TheKnightFoundation.
Students and U.S. Adults Alike Give Americans Low Marks for Listening to Dissenting Views More generally,
half of college students, 50%, believe Americans do a poor job of seeking out and listening to differing
viewpoints; 16% say they do a good job. U.S. adults are significantly less critical of the public on this point, with
39% saying Americans do a poor job abiding different viewpoints and 24% a good job. The views of Muslims
on this are closer to U.S. adults, with 35% saying the public does a poor job and 23% a good job.

The Foundation for Individual Rights in Education (FIRE) rates


colleges on their violations of constitutionally protected
speech based on the following system. LMW.
TheFoundationforIndividualRightsinEducation(FIRE)(ThemissionofFIREisto
defendandsustainindividualrightsatAmericascollegesanduniversities.These
rightsincludefreedomofspeech,legalequality,dueprocess,religiousliberty,and
sanctityofconsciencetheessentialqualitiesofindividuallibertyanddignity.)
SpotlightonSpeechCodes2011:TheStateofFreeSpeechonOurNations
Campuses.2011.
FIRE rates colleges and universities as red light, yellow light, or green light based on how much, if any,
protected speech their written policies restrict. FIRE defines these terms as follows: Red Light: A red-light
institution is one that has at least one policy both clearly and substantially restricting freedom of speech, or that
bars public access to its speech-related policies by requiring a university login and password for access. A
clear restriction is one that unambiguously infringes on protected expression. In other words, the threat to
free speech at a red-light institution is obvious on the face of the policy and does not depend on how the policy
is applied. A substantial restriction on free speech is one that is broadly applicable to important categories of
campus expression. For example, a ban on offensive speech would be a clear violation (in that it is
unambiguous) as well as a substantial violation (in that it covers a great deal of what would be protected
expression in the larger society). Such a policy would earn a university a red light. When a university restricts
access to its speech-related policies by requiring a login and password, it denies prospective students and
their parents the ability to weigh this crucial information. At FIRE, we consider this action by a university to be
deceptive and serious enough that it alone warrants a redlight rating. In this years report, three institutions
are rated red light for maintaining password protection on speech-related policies.5 yellow Light: A yellowlight institution maintains policies that could be interpreted to suppress protected speech or policies that, while
clearly restricting freedom of speech, restrict only narrow categories of speech. For example, a policy banning
verbal abuse has broad applicability and poses a substantial threat to free speech, but is not a clear violation
because abuse might refer to unprotected speech, such as threats of violence or genuine harassment.
Similarly, while a policy banning posters promoting alcohol consumption clearly restricts speech, it is limited
in scope. yellow-light policies are typically unconstitutional,6 and a rating of yellow rather than red in no way
means that FIRE condones a universitys restrictions on speech. Rather, it means that in FIREs judgment,
those restrictions do not clearly and substantially restrict speech in the manner necessary to warrant a red
light. green Light: If FIRE finds that a universitys policies do not seriously threaten campus expression, that
college or university receives a green light. A green light does not indicate that a school actively supports free
expression; it simply means that the schools written policies do not pose a serious threat to free speech.7 Not
Rated: When a private university8 states clearly and consistently that it holds a certain set of values above a
commitment to freedom of speech, FIRE does not rate that university.9

According to recent results, 67% of public schools have a red-light


rating. LMW.

TheFoundationforIndividualRightsinEducation(FIRE)(ThemissionofFIREisto
defendandsustainindividualrightsatAmericascollegesanduniversities.These
rightsincludefreedomofspeech,legalequality,dueprocess,religiousliberty,and
sanctityofconsciencetheessentialqualitiesofindividuallibertyanddignity.)
SpotlightonSpeechCodes2011:TheStateofFreeSpeechonOurNations
Campuses.2011.
Of the 390 schools reviewed by FIRE, 261 received a red-light rating (67%), 107 received a yellow-light rating
(27%), and 12 received a green-light rating (3%). FIRE did not rate 10 schools (3%).11 (See Figure 1.) For the
third year in a row, the percentage of public schools with a red-light rating has declined. Three years ago, 79%
of public schools received a red-light rating. Two years ago, that number declined to 77%, and last year it
dropped again to 71%. This year, 67% of public universities surveyed received a redlight rating. (See Figure 2.)
Since public universities are legally bound to protect their students First Amendment rights, any percentage
above zero is unacceptable, so much work remains to be done.

Even if done with good intentions, its still censorship. LWZ


GregLukianoff[thepresidentandCEOoftheFoundationforIndividualRightsin
Education(FIRE)],6302016,"Eightmisconceptionsaboutfreespeechon
campus,"AspenInstitute,https://www.aspeninstitute.org/aspenjournalof
ideas/eightmisconceptionsfreespeechcampus/
But the censorship on campus is done with the best intentions.
Censorship is not okay even if its done with a pure heart. Is there anything noble about a leader
firing subordinates for voicing criticism, or telling protesters that they have to restrict themselves
to tiny Orwellian free speech zones? Even when administrators cite high-minded reasons for
punishing a student or professor, the decision usually arises from mixed motives.

American Values
Limiting constitutionally protected speech goes against everything
America stands for. LMW.
Preska,Loretta,(JudgePreskawasappointedUnitedStatesDistrictJudgeforthe
SouthernDistrictofNewYorkonAugust12,1992)TyrannyOfThe
Arrogant,Ignorant,AndIntolerant:TheLiberalMovementToUndermineFree
SpeechTouroLawReview,Vol.31[2015],No.2,Art.6
In it, Holmes advised that we should be eternally vigilant against attempts to check the expression of opinions
that we loathe.47 In our time, we cannot let academia and political pressure relegate Justice Holmess
sentiments, which led the majority in Citizens United and McCutcheon, back to the status of dissents once
again. We cannot do that to the America Madison carved out of monarchy; to the republic Publius molded out
of tyranny. That tyrannys last Roman king, Lucius Tarquinius Superbus, was the antithesis of all that Publius
stood for. While Publius was regarded by the Romans as their friend, Tarquins tyrannical reign earned him
his agnomen Superbus, meaning arrogant.48 The fate of these two ancient figures should serve as a
warning to us against the backdrop of the battered state of American free speech: while narrow-mindedness
led to Tarquins downfall, acceptance led to Publius immortality. Madison, Hamilton and Jay needed a name
that would conjure a sense of public-spiritedness in their plea to ratify the Constitution. Today, chilling speech,
in whatever form it takes, tramples on the very spirit of Publius appeal. Infringing free speech not only makes
us arrogant, ignorant, and intolerant, but it also makes todays America the antithesis of all that our Founding
Fathers hoped their nation would be.

This is not a left/right issue because censorship is still wrong. LWZ


GregLukianoff[thepresidentandCEOoftheFoundationforIndividualRightsin
Education(FIRE)],6302016,"Eightmisconceptionsaboutfreespeechon
campus,"AspenInstitute,https://www.aspeninstitute.org/aspenjournalof
ideas/eightmisconceptionsfreespeechcampus/
Free speech on campus is a conservative issue.
As someone who thinks of himself as a political liberal, the fact that I get this assertion so often
drives me nuts. Yes, both professors and administrators tend to lean to the left, but university
censorship affects everyone on campus, regardless of their politics. And even if it did only affect
conservatives, I would hope that my fellow liberals would fight it anyway. In the past few years,
weve seen a number of well-known liberals speak out against campus censorship. But so far,
support for fighting this censorship still skews rightward. If we are really serious about fixing the
state of discourse on campus, it will require a grand alliance of people across the political
spectrum.

Religious Colleges
Religious colleges are often the worst offenders for free speech
violations. On these campuses, discrimination is common.
LMW.
Politt,Katha.(KathaPollitt(bornOctober14,1949)isanAmericanfeministpoet,essayist
andcritic.Sheistheauthoroffouressaycollectionsandtwobooksofpoetry)
WhereFreeSpeechIsIgnored:Religiouscollegesareamongtheworstoffenders
againsttheFirstAmendment.2016
Theres a whole swath of academia, though, that gets left out of the discussion, despite the fact that its
restrictions on speech and behavior, on what is taught in the classroom or argued in a lecture series, would
make Yale and Northwestern and the rest look like New Orleans during Mardi Gras. Im referring, of course, to
evangelical and Catholic colleges. Some of these have no compunction about limiting freedoms that other
colleges consider just a part of normal life. Many have strictures on dress (no more than two piercings in an
earlobe are allowed for women at Pensacola Christian College), on dating and social life, even on how faculty
members conduct themselves in their own homes. Lisa Day, who taught English at a small Christian college in
Appalachia, told me in an e-mail: In the year before I arrived, the then-president required regular, often
unannounced inspection of faculty residences, and any alcohol was confiscatedincluding vanilla extract.
Students have been expelled for being LGBT; professors have been fired or forced to resign for coming out as
transgender, for getting pregnant outside marriage, or for getting divorced. According to a report by the Human
Rights Campaign, there was a sharp uptick last year in the number of schools that requested and received
exemptions to Title IX, the federal law prohibiting sex discrimination. From 2013 to 2015, 35 schools obtained
waivers from the US Department of Education that would allow them to discriminate against students and
faculty who are LGBT, female, or pregnant.

Free speech restrictions allow religious colleges to strictly control


what ideas their students hold. LMW.
Politt,Katha.(KathaPollitt(bornOctober14,1949)isanAmericanfeministpoet,essayist
andcritic.Sheistheauthoroffouressaycollectionsandtwobooksofpoetry)
WhereFreeSpeechIsIgnored:Religiouscollegesareamongtheworstoffenders
againsttheFirstAmendment.2016
Religious colleges also have plenty of restrictions on intellectual inquiry and debate, as well as on political
associations. Student clubs for nonbelievers can be restricted: the University of Dayton, Notre Dame, and
Baylor, all religious schools, refused requests to recognize atheist or humanist student organizations. In 2009,
Liberty University even banned the student Democratic club. (University president Jerry Falwell Jr. recently
made headlines for calling on students to end those Muslims by carrying concealed weapons.) Conservatives
stood up for free speech at Yale in 2015 when students protested a lecture invitation to Ayaan Hirsi Ali, a critic
of Islam, from the conservative William F. Buckley Jr. Program speaker series. I agreed with conservatives on
this onebut where are they when the shoe is on the other foot? Catholic colleges, for example, will not invite
supporters of abortion rights: The Catholic University of America even banned the actor Stanley Tucci from
speaking on Italian cinema because of his support for Planned Parenthood. Around 20 years ago, when I
spoke at two Catholic colleges, I had to sign a statement promising that nothing I said would offend Catholic
doctrine. (The embarrassed professors who invited me sprang the document on me about an hour before my
scheduled talk.)

Faculty members who express their views risk damaging their


careers. LMW.
Politt,Katha.(KathaPollitt(bornOctober14,1949)isanAmericanfeministpoet,essayist
andcritic.Sheistheauthoroffouressaycollectionsandtwobooksofpoetry)
WhereFreeSpeechIsIgnored:Religiouscollegesareamongtheworstoffenders
againsttheFirstAmendment.2016
When it comes to academic content, its hard to argue that a college that makes faculty adhere to Christian
fundamentalist tenets, or that refuses to let its students engage with pro-choice speakers even when theyre
talking on another subject, is providing an intellectual toolbox for the modern world. Wheaton College in Illinois
(not to be confused with secular Wheaton College in Massachusetts) suspended Larycia Hawkins, an
associate professor of political science who donned a hijab in solidarity with harassed Muslims, for writing on
her Facebook page that Christians and Muslims worship the same god. Well, as theology its debatable, but
thats the point: Debate has no place at Wheaton, which requires faculty to sign a faith statement declaring
their belief in the literal Adam in Genesis. (Dont laughin 2011, John Schneider, a professor of theology at
Calvin College, was forced into retirement after publishing an article that questioned the story of Adam and
Eve.) When Darwinismthe foundation of modern biologycannot be taught, what kind of an education
arestudents getting?

These free speech violations undermine students education. LMW.


Politt,Katha.(KathaPollittisanAmericanfeministpoet,essayistandcritic.Sheisthe
authoroffouressaycollectionsandtwobooksofpoetry)WhereFreeSpeechIs
Ignored:ReligiouscollegesareamongtheworstoffendersagainsttheFirst
Amendment.2016.TheNation.
If students are being denied a broad, mind-stretching education at universities often considered among the
best in the world, what about the biased, blinkered, partial education that students are receiving at religious
colleges? What about the assumption that no changing of the mind shall be permitted? Isnt education
supposed to challenge ones settled beliefs? And with Title IX exemptions in hand, colleges are free to ban and
expel LGBT students, discriminate against women, use the Bible as a science text, and fire professors who
disagreewithout putting their federal funding at risk. The truth-in-advertising principle may protect the right of
private colleges to do this. But the last time I looked, separation of church and state was still in the Bill of
Rights.

History
Limiting harmful racial speech does little to redress the past
injunctions of slavery DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The deference usually given to the first amendment values in this balance is justified using the argument that racist
speech is unpopular speech, that, like the speech of civil rights activists, pacifists, and religious and political
dissenters, it is in need of special protection from majoritarian censorship. But for over three hundred years, racist
speech has been the liturgy of America's leading established religion, the religion of racism. Racist speech remains
a vital and regrettably popular characteristic of the American vernacular. It must be noted that there has not yet
been satisfactory retraction of the government-sponsored defamation in the slavery clauses, the Dred Scott
decision, the black codes, the segregation statutes, and countless other group libels. The injury to blacks is hardly
redressed by deciding the government must no longer injure our reputation if one then invokes the first amendment
to ensure that racist speech continues to thrive in an unregulated private market.

Slavery and racial discrimination is non-unique to the past and


harms still exist DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Consider, for example, the case of McLaurin v. Oklahoma State Regents, 72 where the University of Oklahoma
graduate school, under order by a federal court to admit McLaurin, a black student, designated a special seat, roped
off from other seats, in each classroom, the library, and the cafeteria. The Supreme Court held that this arrangement
was unconstitutional because McLaurin could not have had an equal opportunity to learn and participate if he were
humiliated and symbolically stigmatized as an untouchable. Would it be any less injurious if all McLaurin's
classmates had shown up at the class wearing blackface? Should this symbolic speech be protected by the
constitution? Yet, according to a Time magazine report, last fall at the University of Wisconsin "members of the Zeta
Beta Tau fraternity staged a mock slave auction, complete with some pledges in blackface. ' ' More recently, at the
same university, white male students trailed black female students shouting, 'I've never tried a nigger before.'
"These young women were no less severely injured than was Mr. McLaurin simply because the University did not
directly sponsor their assault. If the University fails to protect them in their right to pursue their education free from
this kind of degradation and humiliation, then surely there are constitutional values at stake.

Supreme Courts evolution on university policy over time DJS

Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Explosive changes at the nation's universities generated rapid change in legal doctrine. 133 Beginning in 1961,
courts decided a number of cases that both afforded students basic rights of free expression and fair procedures
against state universities, and sought to discern the line beyond which the university's traditional authority remained.
The Supreme Court first addressed student free speech rights in Tinker v. Des Moines School District, 134 a case
involving junior high school students but often applied, and no doubt intended to be applied, to university students.'
35

In Tinker, the Court held that school officials must permit students to wear black armbands in class to protest the
Viet Nam War, as long as the wearing of the armbands did not create an uproar that disturbed classwork. ' 36 The
opinion could have held for the students on the narrow ground that the school's principal impermissibly
discriminated against the students' viewpoint because he permitted many other symbols to be worn in class,
including the Iron Cross.' 37 Such a ruling would have established a significant precedent for students advocating
unpopular viewpoints while postponing consideration of whether schools have educationally valid interests in the
manner in which students express their views. The Court's holding, however, went much further than this in two
interesting respects.

Students Harmed
Limiting aspects of free speech at colleges is harmful to the
students DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Likewise in Bob Jones University v. United States, 7 8 the court sustained the Internal Revenue Service's decision
to discontinue tax exempt status for a college with a policy against interracial dating and marriage. The college
framed its objection in terms of the free exercise of religion, since their policy was religiously motivated, but the
Supreme Court found that the government had "a fundamental, overriding interest in eradicating racial
discrimination in education" that "substantially outweighs whatever burden denial of tax benefits" 79 placed on the
college's exercise of its religious beliefs. It is difficult to believe that the University would have fared any better under
free speech analysis or if the policy had been merely a statement of principle rather than an enforceable disciplinary
regulation. 80 Regulation of private racist speech also has been held constitutional in the context of prohibition of
race designated advertisements for employees, home sales, and rentals.

Racial and gender segregation happens in quantities that most


Americans cannot relate too DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
[F]olks know that no racial incident is "isolated" in America. That is what makes the incidents so horrible, so scary. It
is the knowledge that they are not the isolated unpopular speech of a dissident few that makes them so frightening.
These incidents are manifestations of an ubiquitous and deeply ingrained cultural belief system, an American way of
life.' Too often in recent months, as I have debated this issue with friends and colleagues, I have heard people
speak of the need to protect "offensive" speech. The word offensive is used as if we were speaking of a difference in
taste, as if I should learn to be less sensitive to words that "offend" me.' 1 2 I cannot help but believe that those
people who speak of offense-those who argue that this speech must go unchecked-do not understand the great
difference between offense and injury There is a great difference between the offensiveness of words that you
would rather not hear-because they are labeled dirty, impolite, or personally demeaning-and the injury inflicted by
words that remind the world that you are fair game for physical attack, evoke in you all of the millions of cultural
lessons regarding your inferiority that you have so painstakingly repressed, and imprint upon you a badge of
servitude and subservience for all the world to see. It is instructive that the chief proponents for sanctioning people
who inflict these injuries are women and people of color, and there are few among these groups who take the
absolutist position that any regulation of this speech is too much.'

Non-educational hate speech is harmful to studentsHazelwood

affirms DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
In Hazelwood, the Court gave secondary school administrators greater control over certain forms of student
speech than they had enjoyed under the Tinker standard. The 1988 decision distinguished between personal
expression that happens to occur on the school premises, to which the Tinker test still applied, and student
expression that occurs in school sponsored . . . expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school, such as publications or plays produced as
part of a schools curriculum. To place content limitations on the latter kind of speech, the Court held, administrators
merely have to demonstrate that their actions are reasonably related to legitimate pedagogical concerns. The
Court reasoned that the standard would leave school officials freer to take into account the emotional maturity of
the intended audience in determining whether to disseminate student speech on potentially sensitive topics and
that the new test would advance its belief that [i]t is only when the decision to censor a school-sponsored
publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the
First Amendment is so directly and sharply implicate[d] as to require judicial intervention to protect students
constitutional rights.

Caring about physical safety doesnt mean that policies that chill
debate are justified. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
A physically safe environment is an absolutely necessary condition for heated debate over ideas.
The university cannot tolerate violations of personal space, physical threats, sustained public
interruptions of speakers, or verbal epithets directed toward specific students; that lies beyond
the boundaries of academic freedom. That doesnt mean, however, that a college or university
should introduce policies that will curtail or chill debate, that adhere to the politically correct
beliefs of the moment, or that let their leaders off the hook through capitulation to demands
that stifle discourse and conversations about what a university education aims to produce.

Colleges are restricting free speech with serious consequences for


the real world. LWZ
NinaBurleigh[Newsweek'sNationalPoliticsCorrespondent.Sheisanawardwinning
journalistandtheauthoroffivebooks],5262016,"TheBattleAgainstHate
SpeechOnCollegeCampusesGivesRiseToAGenerationThatHatesSpeech,"
Newsweek,http://www.newsweek.com/2016/06/03/collegecampusfreespeech
thoughtpolice463536.html
Judges have interpreted the First Amendment broadly, giving Americans some of the most
expansive rights of speech in the world. But over the past two decades, and especially the past
few years, American college administrators and many students have sought to confine speech to
special zones and agitated for restrictions on language in classrooms as well. To protect
undergrads from the discomfort of having to hear disagreeable ideas and opinions,
administrators and studentsand the U.S. Department of Educationhave been reframing
speech as verbal conduct that potentially violates the civil rights of minorities and women.
American college campuses are starting to resemble George Orwells Oceania with its Thought
Police, or East Germany under the Stasi. College newspapers have been muzzled and trashed,
and students are disciplined or suspended for hate speech, while exponentially more are being
shamed and silenced on social media by their peers. Professors quake at the possibility of
accidentally offending any student and are rethinking syllabi and restricting class discussions to
only the most anodyne topics. A Brandeis professor endured a secret administrative investigation
for racial harassment after using the word wetback in class while explaining its use as a
pejorative.
As college campuses have become bastions of rigorously enforced political correctness, the limits
on speech have come crashing down in the real world, with the presumptive Republican nominee
for president dishing out macroaggressions on a daily basis. Donald Trumps comments about the
alleged criminality of Hispanics and Muslims, and about how fat or ugly his female enemies are,
need no restating here, but many of his words would almost certainly be prohibited speech on
most college campuses.
Business leaders, authors, politicians and even comedians are now routinely barred from
American campuses. Springtimethe commencement-speech time of yearis now dubbed
disinvitation season. Students and faculty debate the moral fitness of announced
commencement speakers on social media and engage in bitter fights over whether even mildly
controversial speakers deserve to be behind a podium. Some disinvite themselves. Christine
LaGarde, the head of the International Monetary Fund and one of the most powerful women on
the planet, canceled a speech at Smith, one of Americas pre-eminent womens colleges, after a
Facebook protest against her by some students and faculty for her connection to global
capitalists. Those who turn up can find themselves facing a hecklers veto, as mild-mannered
University of California, Berkeley, Chancellor Robert Birgeneau discovered in 2014 when he had
the temerity to show up at tiny Haverford College without first apologizing for how his campus
cops had treated Occupy Wall Streeters.

Democracy
Free discourse in schools leads to a more democratic government
DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
These comments suggest a strength of the Court's broad view of first amendment protection for offensive speech
that frontal assaults have failed to touch: because democratic government is incompetent to proscribe certain forms
of speech, the Court will deny it the power to do so even in cases in which a substantial majority agrees that a form
of speech is worthless and harmful. Thus, even if one were happy with a democratic determination to punish racist
insults because "[r]acial supremacy is one of the ideas we have ... considered and rejected," 6 one might worry
about which other ideas the controlling majority might consider to have been so decisively rejected that utterance of
them could lead to prosecution. Our political life stands upon very few moral principles that offer guidance in making
these choices. 61 We expect most political decisions to reflect the preferences of shifting majorities in legislatures,
and we employ constitutional rules as an imperfect mechanism of preserving liberties that embody consensual
moral principles. Before a constitutional liberty is released to permit regulation of a perceived social wrong, a
convincing argument that fighting the wrong advances a moral principle rather than a political agenda is required.
Our reluctance to limit constitutional liberties reflects our doubts about the capacity of legislatures to identify and
apply moral principles. Proposing legal protection for some but not all victims of racial insults exacerbates anxiety
about whether such protection rests on a political agenda. Simply arguing that civic virtue ought to play a larger role
in the decision making of representative assemblies will not make it so without profound changes in our political
institutions and culture. The distrust of democratic capacity to censor speech must be overcome before general
restrictions on racist insults can be found constitutional

University policy shapes democratic ideals of the United States DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
For the university to bar offensive ideas would give precedence to a commitment beyond those to truth and to
learning, a commitment to racial justice as a primary goal. Pursuit of such a social goal may appropriately be
embraced under the university's third commitment-to democracy. Indeed, most universities openly pursue equal
opportunity and diversity as important goals. This democratic commitment encompasses the many important ways
that the university directly serves society, such as by training students for useful employments or by conducting
applied research to solve contemporary technical or economic problems. Among their contributions to democracy,
universities have aided the integration of, first, European immigrants and, now, non-European Americans into a
shared culture and economy by facilitating their admission to the university and altering the curriculum or social
context to meet their special needs. 1 0 5 Given that most universities are already committed to democracy, what is
objectionable about banning racially offensive speech to further that goal?

Academic Discourse
Confines on speech in universities limits academic discourse and
research DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The rules for punishing racist insults that universities have recently adopted reflect prevailing views about the
constitutional authority of universities in this area. Current statutes seek to punish a narrow range of utterances,
cautioned, no doubt, by the recent federal district court decision in Doe v. University of Michigan.62 In 1988 the
University of Michigan adopted a Policy on Discrimination and Discriminatory Harassment of Students in the
University Environment, which prohibited "behavior, verbal or physical, that stigmatizes or victimizes an individual on
the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status,
handicap or Vietnam-era veteran status," and poses some kind of "threat" or "interfer[es]" with a person's university
endeavors. 63 An interpretive guide, prepared by the University's Office of Affirmative Action, listed activities and
statements apparently violative of the policy, including, "A male student makes remarks in class like 'Women just
aren't as good in this field as men.' "64 The policy was challenged in Doe as vague and overbroad by a psychology
graduate student who was concerned that he might be sanctioned for classroom discussion of "controversial
theories positing biologically-based differences between sexes and races.65 The court held the policy to be
unconstitutionally overbroad and vague; it suggested, however, that a more narrowly drawn regulation might be
upheld.

Current university policies based on stopping hate speech not


protected by the First Amendment fail in practice DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Both the Wisconsin and Stanford regulations seek to prohibit insults akin to fighting words while avoiding any broad
challenge to established constitutional ideas about a public institution's authority to proscribe certain forms of
speech as worthless or pernicious. The carefully tailored scope of these regulations is understandable given the
probable continuation of the courts' persistent doubts about the capacity of the political process to make good faith
judgments about the content of speech based on defensible principles. Despite the narrow scope of these policies,
universities do believe that racial insults are a meritless form of speech that poisons the atmosphere on campus for
learning and discussion. The narrow prohibitions enacted to regulate such speech, however, fail to reach some of
the most prominent forms of racial insult in the university, such as those broadcast in student publications, on
posters, and during social events. A fresh consideration of the role of the university in maintaining an intellectually
healthy environment is therefore in order.

Universities are trying to provide normative goals to students DJS

Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The university as speech monitor thus is quite different from the state. The university pursues normative goals of
speech, such as clarity, rigor, responsiveness, and balance, whereas the state must be neutral about both the ends
and the means of speech. When the university proscribes a manner of speech, it is more likely that the step is taken
to further valid goals of education or scholarship rather than to maintain favor with the majority who may dismiss the
censor.89 The role of the university as speech monitor seems tolerably well established within the domains of
curricular instruction and scholarship. The academic justification for university regulation of speech beyond the
curriculum has been insufficiently studied.

Due to a climate of fear, millennials are more likely to trade liberty


from security. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
Born in the mid-1990s, seniors in my Columbia University undergraduate seminars today likely
have not experienced major national threats, except for their vague memories of the 9/11
terrorist attacks. Yet these millennials might better be labeled children of war and fear.
During their politically conscious lifetime, they have known only a United States immersed in
protracted wars against real and so-called terrorists, a place where fear itself influences their
attitudes toward other civil liberties. Students are asked to pit freedom of expression or privacy
against personal security. During times when elected officials have exploited the publics fear of
terrorism for political gain, students seem more willing to trade civil liberties for a sense of
security.
Since the 9/11 tragedy, the use of fear is still pervasive in the United States. Indeed, the
distortion of fear pervades todays students thinkingthey tend to overestimate, for example,
the probability of a terrorist attack affecting them. When this fear is combined with the rapid
expansion of social media and the prevalence of government surveillance, students often dismiss
concepts like privacy as old-fashioned values that are irrelevant to them, In fact, my
experience at Columbia suggests that many students believe that the very idea of privacy is
obsolete; most of my students dont seem to mind this loss when its weighed against
uncovering potential terrorists.
Add to this apprehension the fears that so many students of color experienced before collegea
rational fear of the police, of racial stereotypes, of continual exposure to epithets and prejudice
and it is no wonder that they seek safe havens. They may have expected to find this safe haven
in college, but instead they find prejudice, stereotyping, slurs, and phobic statements on the
campuses as well. Additionally, many of these students employ the classification of the insider.

Believing that outsiders cannot possibly understand the situation that faces these groups of
offended individuals, by virtual of race, gender, ethnicity, or some other category, the students
often dismiss the views of their professors and administrators who cant get it because they
are not part of the oppressed group.
Many of the young adults at highly selective colleges and universities have been forced to follow
a straight and narrow path, never deviating from it because of a passion unrelated to school
work, and have not been allowed, therefore, to live what many would consider a normal
childhoodto play, to learn by doing, to challenge their teachers, to make mistakes. Their
families and their network of friends and social peers have placed extreme pressure on them to
achieve, or win in a zero-sum game with their own friends. While its difficult to assess the cases,
and while myriad factors likely contribute to the poor mental health among college students, in
2015 roughly 18 percent of undergraduates reported being diagnosed or treated for anxiety in
the past year, according to the American College Health Associations 2015 annual survey; the
rate was 15 percent for depression. Many are taking anti-depressants and anti-anxiety
medication upon entry into college.
But there is a different, though equally important, reason many students today are willing to
suppress free expression on campus. And the fault largely lies at the feet of many of the
countrys academic leaders. Students and their families have been increasingly treated as
customers. Presidents of colleges and universities have been too reluctant to offend their
customers, which may help explain why they so often yield to wrong-headed demands by
students. Courage at universities is, unfortunately, a rare commodityand its particularly rare
among leaders of institutions pressured by students to act in a politically correct way.
It seems that the vast majority of presidents and provosts of the finest U.S. universities have not
seized this moment of concern voiced by students as a teaching momenta moment to instruct
and discuss with students what college is about. Too many academic leaders are obsessed with
the security of their own jobs and their desire to protect the reputation of their institution, and
too few are sufficiently interested in making statements that may offend students but that show
them why they are at these collegesand why free expression is a core and enabling value of
any higher-learning institution that considers itself of the first rank. Of course, there are strong
academic leaders who do encourage open discussions of issues raised by students while also
speaking out against restrictions on campus speech, against speech codes, safe-space
psychology, and micro-aggressions. But they are too few and far between.

Suppressing speech runs counter to the very goal of college to


produce independent thinkers. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
Students want to be protected against slurs, epithets, and different opinions from their own
protected from challenges to their prior beliefs and presuppositions. They fear not being
respected because of a status that they occupy. But that is not what college is about. While some
educators and policymakers see college primarily as a place where students develop skills for
high-demand jobs, the goal of a college education is for students to learn to think independently
and skeptically and to learn how to make and defend their point of view. It is not to suppress
ideas that they find opprobrious. Yet students are willing to trade off free expression for greater
inclusion and the suppression of books or speech that offendeven if this means that many
topics of importance to their development never are openly discussed.

The University of Chicago is a good example of the purpose of a


university. LWZ
JonathanR.Cole[JohnMitchellMasonProfessoroftheUniversityatColumbia.Heisthe
authorofTowardaMorePerfectUniversity],692016,"TheChillingEffectof
FearatAmerica'sColleges,"Atlantic,
http://www.theatlantic.com/education/archive/2016/06/thechillingeffectof
fear/486338/
Of all of Americas great universities, the University of Chicago seems to have come the closest
historically to getting this right. The schools well-known 1967 Kalven Committee report was, I
believe, correct when it stated: The mission of the university is the discovery, improvement, and
dissemination of knowledge. Its domain and scrutiny includes all aspects and all values of
society. A university faithful to its mission will provide enduring challenges to social values,
policies, practices, and institutions. By design and by effect, it is the institution which creates
discontent with the existing social arrangements and proposes new ones. In brief, a good
university, like Socrates, will be upsetting. Almost 50 years later, at the request of its President
Robert Zimmer, The University of Chicago again articulated its position on freedom of
expression. The short document quotes the historian and former Chicago president, Hanna
Holborn Gray: Education should not be intended to make people comfortable, it is made to make
them think. Universities should be expected to provide the conditions within which hard thought,
and therefore strong disagreement, independent judgment, and the questioning of stubborn
assumptions, can flourish in an environment of the greatest freedom. In a word, the report
goes on, the Universitys fundamental commitment is to the principle that debate or

deliberation may not be suppressed because the ideas put forth are thought by some or even by
most members of the University community to be offensive, unwise, immoral, or wrong-headed.
Yet students may be signaling that their commitment to community values may take
precedence over this core value that many administrators have seen as essential for truly great
institutions of learning.

In the age of Trump, uncomfortable learning is vital. LWZ


NinaBurleigh[Newsweek'sNationalPoliticsCorrespondent.Sheisanawardwinning
journalistandtheauthoroffivebooks],5262016,"TheBattleAgainstHate
SpeechOnCollegeCampusesGivesRiseToAGenerationThatHatesSpeech,"
Newsweek,http://www.newsweek.com/2016/06/03/collegecampusfreespeech
thoughtpolice463536.html
Wood believes students need to hear provocateurs like Derbyshire in order to formulate their
own thoughts and challenges. What is hate speech to begin with? he asks. Its what people
dont like to hear. Trump has the support of a considerable portion of the American electorate.
With someone like him running for president, speaking on national television every day, saying
controversial things about the most important issues of our time, it is imperative that we
confront offensive views and afford college students the opportunity to learn how to engage
constructively with people they vehemently disagree with. Shielding students from
microaggressions does not improve their ability to argue effectively; it coddles them. At a time
like this, uncomfortable learning is vital.

An aversion to free speech impedes scholarly pursuits. LWZ


NinaBurleigh[Newsweek'sNationalPoliticsCorrespondent.Sheisanawardwinning
journalistandtheauthoroffivebooks],5262016,"TheBattleAgainstHate
SpeechOnCollegeCampusesGivesRiseToAGenerationThatHatesSpeech,"
Newsweek,http://www.newsweek.com/2016/06/03/collegecampusfreespeech
thoughtpolice463536.html
Legal scholar and cultural critic Stanley Fish, author of Theres No Such Thing as Free
Speech...and Its a Good Thing Too, says administrators should ignore student censorship
demands because they go against the purpose of the university. Scholarly inquiry cannot be
impeded by demonizing certain forms of speech in advance or anointing as holy certain types of
speech in advance, he tells Newsweek.
What we are seeing is not just phobias about language, Kaminer says. We have gone way
beyond political correctness and are seeing a real decline in critical thinking. If you don't know
the difference between quoting a word and hurling an epithet, then you dont know how to
think.

Education
Hazelwood decision cripples students educational experience DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
In todays atmosphere of increasing collegiate regulation of student speech, the application of the Hazelwood test to
universities could unintentionally cripple college journalism. Because most colleges student publications receive
some form of financial assistance from the universityeither directly through student fee allocations or indirectly
through the provision of free or low-cost office space or equipmentthe Hazelwood framework established for
school-sponsored student expression potentially could apply to the vast majority of college publications.111 Such an
outcome would leave student newspaper or yearbook editors in a difficult position: Do they play nice and allow
administrators to exercise prior review, which could convert their publications into little more than propaganda-laden
puff pieces, or do they stick to their ethical guns and risk funding cuts or worse? Under Hazelwood, college editors
would be forced to conduct a cost-benefit analysis when faced with a column that expresses an unpopular opinion
or a story

Philosophers argue autonomy in education creates a more


democratic citizenry DJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
Some philosophers have argued that civic education in a democracy must include education for autonomy (or more
minimally, autonomy-facilitating education), where autonomy means the effective freedom to reflectively choose
ones own values and way of life (Reich 2002; Brighouse 2003). These philosophers view the autonomy of citizens
as necessary to the legitimacy of the democratic state. If citizens are to participate in electing officials and affecting
policies, they must do so autonomously, on the basis of their own views, values, and preferences. One way to
facilitate autonomy is to have students encounter a variety of views, values, and visions of the good life, and
encourage them to engage with each other about their differences (Ackerman 1980; Callan 1997).

Speech codes are structured in a way that makes it unlikely that


students will protest for their right to free speech.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Take a more concrete example: A student makes a one-off, pro fane, sexist (or racist, or homophobic, and so
on) comment to an other student. Say the listener reports the incident to her resident advisor. Assume the
advisor then meets with the student, who re ceives some sort of oral or written reprimand and is required to
meet with a full-time university employee, who in turn reiterates the university's commitment to and the
importance of the values of equality, diversity, and tolerance. In some cases, sanctions such as expulsion from
dorms might attach,102 but assume here that the stu dent only gets the proverbial slap on the wrist in the form
of a "don't do it again or else" lecture, or is required to undergo some kind of diversity or tolerance
counseling.103 It seems difficult to maintain that, if the student's speech is pro tected, a First Amendment
violation has not transpired.104 The school has indubitably sanctioned the student because of his speech and
likely for its content and viewpoint, and the school's action unquestionably chills speech.105 Equally important,
what reasonable recourse does the student have? Even if he considers suing, a ra tional cost-benefit analysis
likely dissuades him from taking action. The threat or initiation of a lawsuit would, at best, garner an apol ogy
through gritted teeth or a nominal damages award, and at worst he would be told to go away or be out the time
and money invested in litigation. In sum, there are strong incentives for the university to regulate his speech
and for the student to do nothing about it.

First amendment violations represent the desire of universities to


extinguish certain members of its community. LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
The point is that colleges and universities, if left to their own de vices, are astonishingly poor guarantors of the
First Amendment when hateful or offensive speech is at issue. On the one hand, they enact policies that
almost uniformly fail to meet constitutional standards. On the other hand, when policies are nonexistent, they
rely on a series of ad hoc "judgment calls" that lack principled standards of application, lead to arbitrary results
often based on viewpoint discrimination, and impose unconstitutional sanctions that punish and chill speech.
Either situation presents First Amendment problems that spring from a pervasive hostility to wards views that
the institution sees as its mission to extinguish from members of its community.

Violating freedom of speech leads to violations of freedom of


thought. LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,AndThe
HostileSpeechEnvironment Source:VirginiaLawReview,Vol.98,No.7(November
2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
If freedom of speech is to have any content, there must exist a corresponding freedom of thought that protects
the "process by which ideas and expressions are generated, nurtured, and mooted" because "individual
freedom of thought is a clear requisite for meaningful freedom of speech protections."159 The Supreme Court,
in Wooley v. Maynard, suggested that freedom of thought was a fundamental First Amendment guarantee, and
that the right to speak or not to speak was merely a subset of that more basic free dom.160 In the famous
Pledge of Allegiance case of West Virginia Board of Education v. Barnette, the Court declared that "the pur
pose of the First Amendment to our Constitution [is] to reserve from all official control" uthe sphere of intellect
and spirit."161 Indi vidual Justices have since emphasized that the First Amendment protects an individual's
right to "autonomous control over the de velopment and expression of one's intellect."162 In recognizing that
free speech cannot be valued or protected without some corre sponding (or preexisting) valuation and
protection of free thought, these passages validate the constitutional status of the freedom of thought.163

Speech codes on college campuses are an attempt to force all


students to think a certain way. LMW.

Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Yet on the issue of hate speech, freedom of thought (or speech) is sometimes what colleges and universities
appear not to want. Instead, attempts are occasionally made to inculcate particular view points and
conceptualizations of mantras such as "diversity" in an effort to squash out the thoughts and expressions
inherent in hateful (or merely politically incorrect) speech. Speech codes are but one of many manifestations of
the "attempt to dictate primarily how students (and faculty) think."168 There is a substantial and concerted
effort to "enforce[]... a 'politically correct' orthodoxy" through "raw political power"169 despite the glaring fact
that imposing such an orthodoxy is exactly what the First Amendment for bids.17" Individuals have an interest
in freely and authentically formulating their thoughts, beliefs, and opinions without being bombarded by
mentally meddlesome messages. Free thought cannot be maintained in the face of constant, officious
interference that attempts to overwhelm the mind into submissive acceptance of the propounded view.172
Thus, while state action may not burden speech directly, it can still endanger or obstruct freedom of thought to
the degree necessary to justify restrictions on the government and its speech.173 the government and its
speech.173 In short, colleges and universities make concerted and elaborate efforts to promote (and even
coerce) particular values,174 trying to "exert substantive influence on mental content in ways that are in
different to and attempt to bypass the thinker's authentic consid eration of and conscious engagement with [an]
idea."175 But whether codified as a law compelling speech or a series of perva sively and invasively
disseminated policies hostile to a given view point, the infringement on the freedom of thought and freedom of
speech is the same whenever government activity aims to inculcate beliefs through brute force rather than
intellectual engagement.176

The university is able to do this because of an unequal power


dynamic. LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
State action is omnipresent in public higher education; as one scholar put it, "the school environment pervades
the life of the stu dent."180 Especially if a student lives on campus, it is entirely possi ble for him or her to
spend months at a time insulated in a cocoon of government undertakings. She wakes up in a universityowned room on a university-owned bed. After showering in the univer sity-owned bathroom, she rides the
university-owned bus manned by a university-paid driver to the university-owned classroom, where she listens
to a university-tenured employee lecture. After wards, she eats university-prepared food at the universityoperated cafeteria before returning to her snug, university-owned bed. As a result, there is a significant power
relationship between the institu tion and its students,181 with the university having extensive control over the
day-to-day experiences and aspects of students' lives.

By mandating certain viewpoints and thoughts, the university


creates a hostile learning environment. LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
If a listener sometimes has a First Amendment right not to receive speech and the government's speech
pervades the university con text, then the government may have a First Amendment duty to re frain from
speaking.185 Restated, the listener may have a First Amendment cause of action (a hostile speech
environment claim) to make the government leave him alone. This reasoning is an atypical invocation of the
captive audience doctrine. Most commentators who have applied the captive audi ence doctrine to higher
education have done so to argue in favor of hate speech regulation, at least in limited contexts such as dormito
ries.186 Since hate speech is protected as a general matter, across the-board speech codes justified by the
captive audience doctrine are unlikely to be legal. In the dorm context, the argument is that, because there is
"no right to force speech into the home of an un willing listener,"187 hate speech in dorms is a valid object of
regula tion. The argument ignores the fact that First Amendment interests exist on both sides equally188 and
that such equality drops away in the case of government speech

Enforced values lack authenticity, and so are less likely to be

followed. LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Moreover, when values are imposed on a community rather than allowed to spring organically from it, those
values are undermined by a lack of authenticity.200 As current Columbia University presi dent and noted First
Amendment scholar Lee Bollinger served, the toleration of intolerance reaffirms community norms.201 Even
one of the most vociferous advocates of regulating and sup pressing hate speech admits that tolerating
intolerance demon strates the strength of a community's commitment to tolerance.202

Academic freedom lies on top of free speechkey to a higher


education DJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
Universities also have institutional rights to academic freedom that derive from their responsibility to protect the
academic freedom of scholars. In a 1957 US Supreme Court case, Sweezy v. New Hampshire (1957), Justice Felix
Frankfurter offered a summary definition of institutional academic freedom that has been widely cited ever since: a
university should be able to determine for itself on academic grounds who may teach, what may be taught, how it
shall be taught, and who may be admitted to study. This statement was cited in the landmark affirmative action
decision, Regents of the Univ. of California v. Bakke (1978), which struck down quotas while permitting (but not
requiring) universities to consider race as one among many factors in admissions.

Together the individual academic freedom of scholars and the institutional academic freedom of universities serve
as safeguards against political repression, for the sake of not only of scholars but also of citizens. Academic
freedom helps prevent a subtle but invidious form of majority tyranny. Democracies can most reliably foster freedom
of the mind, which is an essential part of freedom of speech and conscience, by protecting the profession of
scholars who defend unpopular ideas within universities that are free to decide who may teach, what may be taught,
how it shall be taught, and who may be admitted to study

Fighting Racism
Acceptance of all speech is key for a diverse and more inclusive
society DJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
Critics of making autonomy an essential aim of democratic education worry that it goes too far in the direction of
requiring that schools subject all beliefs and values even those religious beliefs and values, for example, that are
not essential to a well-functioning democracy to critical scrutiny. While encountering a variety of views and values
in schools is important for the development of tolerance and as a way to learn to appreciate the diverse society in
which the students live, educating students to evaluate even their parents (along with other citizens) religious
values (and other values that are not essential to democratic justice) can create an unnecessary rift between the
worldviews of parents and students (Tomasi 2001). Focusing democratic education on autonomy in the broadest
sense of the term subjecting everything to critical scrutiny on the basis of ones independent set of values is
particularly problematic when students come from cultures that do not value personal autonomy (Galston 1991;
Ben-Porath 2010a). Critics point out that democratic education can both respect a wide range of cultures and teach
mutual respect and toleration by focusing civic education on key democratic values and principles rather than by
teaching autonomy as a comprehensive moral philosophy.

Open discourse allows for a more rapid inclusion and development


of the self DJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
Modern democracies are multicultural in the broadest sense of the term: just as their histories, if accurately
rendered, combine the contributions of many cultures, so too do their citizens identify with many cultures (Gutmann
2003). Yet public schools in many democracies have taught their domestic history and civics curricula as if their
society were monocultural. Many history curricula downplay, some even disparage, cultural identities other than the
dominant one within a society. Many public schools in the USA, for example, once assigned American history texts
that referred to Native Americans as savages, neglected the Spanish exploration of the New World, and were almost
entirely devoid of voices of African Americans and women (Stille 1998: 1520). School days commonly included
Protestant prayers, readings from the King James version of the Bible, and Christian hymns. All children, whatever
their religion, were expected to participate. When they were exempted, upon their (or their parents) request, they
were made to feel like outsiders and dissenters to a publicly endorsed religion.

Free discourse in universities allows for the blending of cultures


intern racism is decreased DJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
There are two primary ways that schools can promote mutual respect among children who identify (and are
identified) with many cultures. The first way reacts to historical exclusions from the curriculum by including the
historical experiences and cultural contributions of groups. The second way reacts to historical intolerance by
teaching children the virtue of toleration: democratic citizens can agree to disagree about beliefs and practices that
are a matter of individual freedom. Toleration substitutes for imposing a single comprehensive system of beliefs and
practices on all students, regardless of their religious or other relevant convictions. Toleration can also encourage
forms of relationship and communication within the public sphere that would increase the opportunities of all
individuals both to voice their views and to hear the opinions of others

Free speech restrictions have historically been used to prevent


activist groups from fighting against oppression. LMW.
Cohen,Robert(RobbyCohenisanactinginstructorofHistoryattheUniversityof
CaliforniaatBerkley)BerkeleyFreeSpeechMovement:PavingtheWayfor
CampusActivismOAHMagazineofHistory,Vol.1,No.1,Teachingaboutthe60's
(Apr.,1985),pp.1618Publishedby:OxfordUniversityPressonbehalfof
OrganizationofAmericanHistoriansStableURL:
http://www.jstor.org/stable/25162448
When, in the fall of 1964, students at the University of California at Berkeley sought to attract campus support
for the civil rights movement?which was working to end racial discrimination and segregation in America?they
encountered opposition from the university's president and deans. These university officials, citing a formerly
unenforced school regula tion which prohibited campus political advocacy, told students they could not raise
money or distribute literature on campus for the civil rights movement or any other off-campus political cause.
Students at Berkeley united in October 1964 to fight these political restrictions. Their successful campaign to
gain free speech rights at college became known as the Berkeley Free Speech Movement. It was the first
major cam pus rebellion of the turbulent 1960s. The first major confrontation in the Berkeley free speech
controversy occurred on October 1, 1964, when student ac tivists set up tables on university property to raise
donations for civil rights organizations. This defied the ban on campus political advocacy. The students had
decided to defy the ban because they viewed it not only as an infringement on their free speech rights, but also
as an attempt to undermine the growing involvement of Berkeley students in the civil rights movement.

Free speech is crucial to promoting activism and preventing a

silent generation. LMW.


Cohen,Robert(RobbyCohenisanactinginstructorofHistoryattheUniversityof
CaliforniaatBerkley)BerkeleyFreeSpeechMovement:PavingtheWayfor
CampusActivismOAHMagazineofHistory,Vol.1,No.1,Teachingaboutthe60's
(Apr.,1985),pp.1618Publishedby:OxfordUniversityPressonbehalfof
OrganizationofAmericanHistoriansStableURL:
http://www.jstor.org/stable/25162448
The Berkeley activists who led the Free Speech Movement pioneered a new brand of student politics. They
brought the daring, non-violent protest tactics of the civil rights movement to campus and proved that these
tactics could be as effective in fighting political censorship in the North as they had been in combatting racism
in the South. The Free Speech Movement's victory fostered a new spirit of activism among students by eroding
the fears they had inherited from the tense, Cold War era of the 1950s. During that period, U.S. Senator
Joseph McCarthy and other right wing leaders under the guise of fighting communism promoted intolerance by
equating dissident or radical political activity with disloyalty. Students in the 1950s were so affected by Mc
Carthyism that they were afraid to demonstrate, to sign petitions, or even to speak out on controversial issues.
They came to be known as the "silent generation." FSM's success demonstrated to students across the nation
that effective protest movements could be built on campus, and that engaging in such dissident activity was not
"un American" but was, in fact, their moral and political right. By legitimating the politics of protest on campus,
FSM helped bury the ghost of McCarthyism and facilitate the conversion of American students from the silence
of the 1950s to the activism of the 1960s.

Small Voices
Classrooms are meant to allow the marginalized a voice, limiting
speech silences them DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
What does it mean to recognize, in the educational practices of college and university classrooms, that all voices
are not equal? The solution is neither to invoke an absolutist sense of free speech, nor to prohibit simply and
absolutely all hostile expressions. The uniqueness of classrooms is that, ideally, they provide a public space in
which marginalized and silenced voices can respond to ignorant expressions rooted in privilege, white supremacy,
or other dominant ideologies. Unlike many public spaces in which one may encounter hate speech say, on a
street or in a shopping mall the classroom is one of the few public spaces in which one can respond and be
heard. In these classrooms, educators must deal with messy issues that others cannot or do not want to address.
Does this give educators any special Constitutional privilege or dispensation? I leave that question open. However,
to advocate that we use classrooms to critically interrogate racist and homophobic remarks is not based on an
invocation of free speech. Rather, an affirmative action pedagogy recognizes that we are not equally protected in
practice by the first amendment, and that education needs fairly to represent marginalized voices by challenging
dominant voices in the classroom.

Intellectual conversations and debates in classrooms stem from


open free speech DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
Not all university educators, by any means, agree on what rules should govern the climate or speech of a
classroom. At a recent womens studies meeting, we discussed how any of the twenty of us dealt with expressions
of racist or homophobic ignorance that arise in our classrooms. One faculty member, an assistant professor in black
studies, stated that she informs students that, during the semester, they are welcome to say or express any views
they wish. She invites this precisely because she sees the classroom as place where others can educate such
ignorance, that collectively the group can respond and speak back. She described how she sees attitudes change
within the context of the educational space, over time: for example, when she counters a students ignorant remark,
and other students chime in, she sees the student nodding her head or she begins to develop a new awareness of
the social context for expression. This professor stressed the importance of critical analysis: she requires students
accountability for every one of their claims and opinions

Classrooms that focus on free discourse have quantifiable changes


in future beliefs DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
What if a student does not support the empowerment of women? Yet what if one excludes this student from class,
when in fact there is some evidence to show that sitting through the course would change that persons prejudiced
thinking? A recent program on PBS documented the radical transformation which can occur as a result of
educational experience: a course called Tolerance taught in a southern California high school, is offered in
response to hate speech and crimes on their campus. One semester a white supremacist goes through the course
and appears not to have changed his views. A few years later, he returns to the teacher and explains how the
course had changed him: he has reevaluated his belief system and now supports black rights

Equal Protection
The First Amendment arms all citizens with the same verbal
ammunition DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
The authors of Words that Wound address the tension between the First and Fourteenth amendment. The tension
arises because, in fact all people are not equally protected under the law due to the institutionalized inequities within
our society. This complicates the effectiveness of the First Amendment. Scholarship in critical race theory and
educational analyses document that in recent years we find incidents of hate speech primarily to be directed at
racial, religious, or sexual minorities. Not surprisingly, one finds in turn that invocations of the right to free speech
are most often invocations to protect the right of the members of the dominant culture to express their hatred toward
members of minority culture. These authors make important legal and historical cases to support their observation
that, in practice, while the rhetoric of the First Amendment is a buzz word that makes all of us want to rally for its
principle, in practice the First Amendment arms conscious and unconscious racists Nazis and liberals alike
with a constitutional right to be racist. Racism is just another idea deserving of constitutional protection like all
ideas. Similarly, Judith Roof, a scholar from another discipline addresses classroom dynamics and argues that we
must read the appeal to the First Amendment as itself a kind of panic response in the same order as hate speech
itself.

Educators Voices
Limits on speech limit educators on what they can teach DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
Many educators who teach about social inequalities encounter this phenomenon in which the use of self-disclosure
on the part of a speaker who enjoys relative social privilege reassert their dominance. For philosophers, this throws
us into longstanding arguments regarding epistemological relativism: do all assertions carry equal weight? If not,
why not? Particularly with respect to the invocation of personal experience, how are we to rank the
painfulness/attention-worthiness of different experiences, and how much space these experiences should be
permitted within a discussion? Also in the Concerns issue, Angela Jones offers an insightful way of dealing with
such uses of self disclosure: Every semester, for instance, a self-identified white, middle-class male student will
complain that he is tired of hearing minorities whine about their oppression, usually volunteering his own problems
as evidence that he too is oppressed.I resist the temptation to cross examine him because his complaint typically
shuts down anyone who would challenge him and my pointed questions would only shut him down or create an
adversarial exchange.Instead it is my goal at those moments to authorize those who have been silenced by
connecting their previously volunteered experiences to this particular discussion. The educator might then ask the
marginalized students to discuss and explain the issues they have previously raised, and bring the discussion
around to ask: how is that analysis of racism and sexism gets cast as whining? Joness example represents a
recurrent problem: when we re-configure the conversation to foreground the experiences of marginalized groups,
those who have traditionally been at the center develop creative ways to reassert their centrality.

Tenured professors still face problems. LWZ


GregLukianoff[thepresidentandCEOoftheFoundationforIndividualRightsin
Education(FIRE)],6302016,"Eightmisconceptionsaboutfreespeechon
campus,"AspenInstitute,https://www.aspeninstitute.org/aspenjournalof
ideas/eightmisconceptionsfreespeechcampus/
Tenured professors have nothing to worry about.
Perhaps the biggest trend I noticed in the 2015-2016 school year is how many cases involved
attempts to expel or discipline tenured professors. While tenure usually provides professors with
strong protections, this year tenured professors faced sanctions in cases at Marquette University,
Northwestern University, Louisiana State University, and more.

Neg Evidence

Political Correctness
Civil language is necessary for education and debate. LMW.
Thorne,Ashley.(AshleyThorneisexecutivedirectoroftheNationalAssociationof
Scholars,8West38thStreet,Suite503,NewYork,NY)SocialMedia,Civility,and
FreeExpression2015.SpringerScience+BusinessMediaNewYork.
Times have changed since 1915, and many of us now see a call for temperateness of language as
essentially a call for censorship. Indeed, trying to mandate civility is a slippery slope that can be used for
censorship, but the impulse to establish a culture of maturity and courtesy is a good one.Why should we care
about civility? Its not just about saying, Be nice. For one thing, civility is important because its fairshowing
equal respect for other people is a form of justice. Its also necessary for true education. If our goal is to grow
educated men and women who can think for themselves and exercise good judgment, civility is the healthy soil
that makes it possible for them to grow this way, whereas vilifying people shuts down open debate and stunts
educational growth.

Harassment
Sexual harassment is considered constitutionally protected free
speech, meaning that protecting free speech and preventing
sexual harassment are often two conflicting goals. LMW.
Dower,Benjamin(B.S.,TheUniversityofTexasatDallas,2009;J.D.expected.The
UniversityofTexasSchoolofLaw,2012)TheScyllaofSexualHarassmentandthe
CharybdisofFreeSpeech:HowPublicUniversitiesCanCraftPoliciestoAvoid
Liability.THEREVIEWOFLITIGATION[Vol.31:3.2012.
The constitutional implications of Title VII and Title DC are relatively unproblematic when prohibiting quid pro
quo sexual harassment. No court has ever recognized a constitutional right to discriminate based on sex.
Sexual discrimination is equated with an unwanted sexual advance in the workplace paired with a threat or
inappropriate expression of favoritism. ^ However, the hostile work environment cause of action has the
potential to bump up against First Amendment protections. Twentieth-century First Amendment jurisprudence
has consistently emphasized that speech may not be banned merely because of its offensive nature. As
Justice Holmes famously stated, "[i]f there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thoughtnot free thought for those who agree with us but
freedom for the thought that we hate."^^ Even more on-point was Justice Brennan's observation in Texas v.
Johnson, a landmark 1989 case in which the Supreme Court held an anti-flag burning statute unconstitutional:
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or disagreeable." " The Supreme
Court has never directly addressed the potential conflict between Title VII and Title DC sexual harassment
prohibitions and the First Amendment protection of free speech. While the Court has recognized several forms
of expression that are not protected by the First Amendmentincluding speech that is directed at inciting or
producing imminent lawless action and is likely to do so,"*' fighting words,'*^ and obscenity"*^much legally
prohibited sexual harassment does not fall within any of those categories. As the Third Circuit put it: [T]here is
no "harassment exception" to the First Amendment's Free Speech Clause. . . . We [have] explained that while
there is no question that nonexpressive, physically harassing conduct is entirely outside the ambit of the free
speech clause, when laws against harassment attempt to regulate oral or written expression on such topics,
however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment
implications.'*''

Constitutionally protected speech allows individuals to partake in


racist/sexist/anti-queer and ableist intimidation and
harassment. LMW.
Dower,Benjamin(B.S.,TheUniversityofTexasatDallas,2009;J.D.expected.The
UniversityofTexasSchoolofLaw,2012)TheScyllaofSexualHarassmentandthe
CharybdisofFreeSpeech:HowPublicUniversitiesCanCraftPoliciestoAvoid
Liability.THEREVIEWOFLITIGATION[Vol.31:3.2012.
In Pennsylvania, a district court struck down a provision in the Shippensburg University Code of Conduct,
which limited the right of expression to communication that does not "provoke, harass, intimidate, or harm
another." '"^ The provision furthermore "prohibit[ed] racism/ethnic intimidation and harassment," and it
considered it a violation "to maliciously intend to engage in any activity, (covert or overt that attempts to injure,
harm, malign or harass), that causes the subordination, intimidation and/or harassment of a person or group
based upon race, color, creed, national origin, sex, disability or age."'"^ The court struck down the policy as
overbroad because it prohibited constitutionally protected speech as well as unprotected speech. '''^ Similarly,
Texas Tech University's speech policy was struck down as overly broad.'^ The policy prohibited "insults,
epithets, ridicule, or personal attacks," which the court noted would includeand have a chilling effect on
some protected speech.'^'

Colleges who try to investigate harassment are hampered by laws


protecting free speech. LMW.
Dower,Benjamin(B.S.,TheUniversityofTexasatDallas,2009;J.D.expected.The
UniversityofTexasSchoolofLaw,2012)TheScyllaofSexualHarassmentandthe
CharybdisofFreeSpeech:HowPublicUniversitiesCanCraftPoliciestoAvoid
Liability.THEREVIEWOFLITIGATION[Vol.31:3.2012.
Regardless of whether the perpetrator is a student, staff member, or faculty member, universities now risk
significant legal liability when their policies lead administrators to respond improperly to sexual harassment
complaints. On the one hand, if the public university ignores the complaint or conducts an investigation, but it is
unwilling to punish the alleged harasser, the university risks liability to the alleged victim of the harassment. On
the other hand, if public university administrators infringe on constitutionally protected speech in an effort to
crack down on the harassment, the university risks liability to the alleged harasser. While this is not a problem
for conduct-related offenses, such as so-called "quid pro quo" solicitations,^ when it comes to hostile work
environment cases, it is often unclear what speech is protected and what speech is not. The balancing act of
preventing sexual harassment while preserving protected speech is often played out in challenges to university
sexual harassment and speech policies.

Public universities face additional legislation protecting speech

which makes it difficult to craft sexual harassment policies.


LMW.
Dower,Benjamin(B.S.,TheUniversityofTexasatDallas,2009;J.D.expected.The
UniversityofTexasSchoolofLaw,2012)TheScyllaofSexualHarassmentandthe
CharybdisofFreeSpeech:HowPublicUniversitiesCanCraftPoliciestoAvoid
Liability.THEREVIEWOFLITIGATION[Vol.31:3.2012.
The function of the standing doctrine in an overbreadth challenge constitutes yet another reason why university
policies are challenged in the courts. Unlike traditional standing doctrine, under which the constitutional injuryin-fact requirement mandates that a plaintiff must have suffered "an invasion of a legally protected interest
which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical," ^' the
overbreadth doctrine allows a plaintiff to challenge a law (or public university policy) on the basis of its potential
application to protected speech.^^ Thus, even if the university uses restraint in applying its policy and only
punishes unprotected speech, if the policy is worded in such a way as to empower the university to punish
protected speech and the potential to punish cannot be avoided by a court's narrowing construction of the
policy, the policy may be struck down for violating the First Amendment.^ Justice Brennan explained the
necessity of this rule, stating that "persons whose expression is constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected
expression."^"*

Polling data shows that minorities want colleges to be able to


restrict intentionally offensive and inflammatory speech. LMW.
GallupPoll.FreeExpressiononCampus:ASurveyofU.S.CollegeStudentsandU.S.
Adults.2016.TheKnightFoundation.
Students Support Free Speech and Press Rights in Principle, but Many, Especially Blacks and Women, Are
Willing to Entertain Significant Restrictions By 78% to 22%, more students say colleges should expose
students to all types of speech and viewpoints than say colleges should prohibit biased or offensive speech in
the furtherance of a positive learning environment. They are more likely than U.S. adults (66%) to say this.
Students do appear to distinguish controversial views from what they see as hate. They believe colleges
should be allowed to establish policies restricting language and behavior that are intentionally offensive to
certain groups, but not the expression of political views that may upset or offend members of certain groups.

Protests about discrimination are more common than protests


about free speech. LMW.
GallupPoll.FreeExpressiononCampus:ASurveyofU.S.CollegeStudentsandU.S.
Adults.2016.TheKnightFoundation.
Protests on Diversity More Common Than Those on Free Speech College campuses have traditionally been a
place where protests occur to raise awareness of issues that adversely affect the student body, as well as the
United States and the world more generally. As occurred last fall, protests on one campus may spark protests
about the same issue on other campuses. Fifty-four percent of college students report there have been
protests on matters of diversity and inclusion on their campus this academic year, and 12% say they personally
attended one of those protests. Black students (19%) are more likely than white students (10%) to say they
took part in those protests, but whites are more likely to report protests happened on their campus. Democrats
are more likely than Republicans both to report protests occurred and to say they took part. Far fewer college
students, 22%, say protests on free speech issues have occurred on their campus this academic year, and
only 3% report taking part in those protests.

Colleges who try to prevent this harassment get their codes struck
down as unconstitutional. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
While increasing numbers of individuals have been reporting that they have been the victims of hate speech,
the courts have been striking down legislation intended to provide the targets of hate speech with some
protection from it. Some universities initially responded to the recent proliferation of hate speech by instituting
antiharassment codes or by enforcing existing onesonly to have these codes ruled unconstitutional. The
courts have ruled, in several recent cases, that even if hate speech constitutes a form of harassment or race or
sex discrimination, it is protected under the First Amendment. 14

This allows students to use hate symbols and hate objects as well
as use harassing speech. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
Likewise, in John Doe v. University of Michigan, an opinion ruling unconstitutional a University of Michigan
policy on discrimination and discriminatory harassment, Judge Avern Cohn wrote: It is an unfortunate fact of
our constitutional system that the ideals of freedom and equality are often in conflict. The difficult and
sometimes painful task of our political and legal institutions is to mediate the appropriate balance between
these two competing values. 17 Judge Cohn concluded that while the Court is sympathetic to the Universitys
obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the
expense of free speech. 18 In 1992, the U.S. Supreme Court ruled unconstitutional a Saint Paul, Minnesota,
ordinance that made it a misdemeanor to place on public or private property a symbol, object, [etc.] which one
knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender. 19

The courts have failed to put forth a valid reason for why hate
speech deserves to be protected. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
Philosophers have the luxury (not shared by judges or university administrators) of being able to focus on
whether the courts stance on hate speech is justified, not simply on what the courts recent decisions have
been. I think the fact that the United States is virtually unique among Western nations in providing legal
protection for hate speech should prompt a response to the Courts doctrine that goes beyond unreflective selfcongratulation. 31 The U.S. courts have, thus far, failed to develop a consistent and principled free speech
doctrine which would explain why hate speech should be protected. Rather, the courts decisions in free
speech cases have resulted in what Laurence Tribe has called a patchwork quilt of exceptions with no
underlying doctrine that unifies and explains them. 32 Can such a doctrine be found?

Hate speech silences its targets, which violates their right to free
speech. LMW.
Brison,Susan(SusanBrisonisProfessorofPhilosophyandEuniceandJulianCohen
ProfessorfortheStudyofEthicsandHumanValuesatDartmouthCollege,where
shealsoteachesinthePrograminWomen's,Gender,andSexualityStudies.)The
AutonomyDefenseofFreeSpeechSource:Ethics,Vol.108,No.2(January1998),
pp.312339Publishedby:TheUniversityofChicagoPressStableURL:
http://www.jstor.org/stable/10.1086/233807
Furthermore, if hate speech has, as some have argued, the effect of silencing the bystanders, or at least
preventing others from listening to what they have to say, then audiences are being deprived of their
speech.102 If restrictions on hate speech could help to prevent this silencing effect, then there would be an
additional audience interest in having such restrictions. For all of these reasons given above, this fourth
account of autonomy fails to yield an argument against restricting hate speech

Supreme Court
Brown v Board of Education sets the precedent on racist speech in
public schools DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The key to this understanding of Brown is that the practice of segregation, the practice the Court held inherently
unconstitutional, was speech. Brown held that segregation is unconstitutional not simply because the physical
separation of black and white children is bad38 or because resources were distributed unequally among black and
white schools. 39 Brown held that segregated schools were unconstitutional primarily because of the message
segregation conveys-the message that black children are an untouchable caste, unfit to be educated with white
children. Segregation serves its purpose by conveying an idea. It stamps a badge of inferiority upon blacks, and
this badge communicates a message to others in the community, as well as to blacks wearing the badge, that is
injurious to blacks. Therefore, Brown may be read as regulating the content of racist speech. As a regulation of
racist speech, the decision is an exception to the usual rule that regulation of speech content is presumed
unconstitutional.

Supreme Court dissent shows standard of sensitive topics is too


vague DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
In a blistering dissent, Justice Brennan cautioned that the Hazelwood standard could leave student press freedom
open to inappropriate attacks. The dissent, joined by Justices Blackmun and Marshall, blasted the majority decision
for departing from the Tinker test in the context of school sponsored student speech, asserting that the distinction
between such expression and speech that incidentally occurs on campus had no precedential foundation. The
dissent also rejected each of the rationales that the Court used to justify the laxer Hazelwood standardthe public
educators prerogative to control curriculum; the pedagogical interest in shielding the high school audience from
objectionable viewpoints and sensitive topics; and the schools need to dissociate itself from student expression
by arguing that Tinker fully addresses the first concern; the second is illegitimate; and the third is readily achievable
through less oppressive means. As to the third point, the dissent argued that the school could have detached itself
from controversial views via a public response or a regularly published disclaimer like the one Spectrum published
each school year. Justice Brennan warned that the majority opinion invites manipulation to achieve ends that
cannot permissibly be achieved through blatant viewpoint discrimination and chills student speech to which school
officials might not object. The dissent then concluded with a caustic condemnation of the decisions message to
high school journalists: The young men and women of Hazelwood East expected a civics lesson, but not the one
the Court teaches them today.

Non-Speech
Non-speech elements can violate the First Amendment
Segregation Laws DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
If, for example, John W. Davis, counsel for the Board of Education of Topeka, Kansas, had been asked during oral
argument in Brown to state the Board's purpose in educating black and white children in separate schools, he would
have been hard pressed to answer in a way unrelated to the purpose of designating black children as inferior.44 If
segregation's primary goal is to convey the message of white supremacy, then Brown's declaration that segregation
is unconstitutional amounts to a regulation of the message of white supremacy. 45 Properly understood, Brown and
its progeny require that the systematic group defamation of segregation be disestablished. 46 Although the
exclusion of black children from white schools and the denial of educational resources and association that
accompany exclusion can be characterized as conduct, these particular instances of conduct are concerned
primarily with communicating the idea of white supremacy. The non-speech elements are byproducts of the main
message rather than the message simply a by-product of unlawful conduct

Analysis: Essentially what this card is saying is what matters is the actions that come
out of said speech. In the given example of Brown v. Board what mattered is that a
message of white supremacy was being sent to the people of the nation, which is
another violation of the Constitution. Even though on face there is little connection to
free speech, when non-speech and intents of said speech are looked at a deeper
message comes to play.

Non-speech impacts from hate speech have quantifiable physical


impacts DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The fighting words doctrine anticipates that the verbal "slap in the face" of insulting words will provoke a violent
response with a resulting breach of the peace. When racial insults are hurled at minorities, the response may be
silence or flight rather than a fight, but the preemptive effect on further speech is just as complete as with fighting
words.89 Women and minorities often report that they find themselves speechless in the face of discriminatory
verbal attacks. This inability to respond is not the result of oversensitivity among these groups, as some individuals
who oppose protective regulation have argued. Rather, it is the product of several factors, all of which reveal the
non-speech character of the initial preemptive verbal assault. The first factor is that the visceral emotional response
to personal attack precludes speech. Attack produces an instinctive, defensive psychological reaction. Fear, rage,
shock, and flight all interfere with any reasoned response. Words like "nigger," "kike," and "faggot" produce physical
symptoms that temporarily disable the victim, and the perpetrators often use these words with the intention of
producing this effect. Many victims do not find words of response until well after the assault when the cowardly
assaulter has departed.
Example of actual impact (from article above): One of my students, a white, gay male, related an experience that
is quite instructive in understanding the inadequacy and potential of the "fighting words" doctrine. In response to my
request that students describe how they experienced the injury of racist speech, Michael told a story of being called
"faggot" by a man on a subway. His description included all of the speech inhibiting elements I have noted
previously. He found himself in a state of semi-shock, nauseous, dizzy, unable to muster the witty, sarcastic,
articulate rejoinder he was accustomed to making. He suddenly was aware of the recent spate of gay-bashing in
San Francisco, and how many of these had escalated from verbal encounters.96 Even hours later when the shock
resided and his facility with words returned, he realized that any response was inadequate to counter the hundreds
of years of societal defamation that one word-"faggot ' ' - carried with it. Like the word "nigger" and unlike the word
"liar," it is not sufficient to deny the truth of the word's application, to say, "I am not a faggot." One must deny the
truth of the word's meaning, a meaning shouted from the rooftops by the rest of the world a million times a day.97
Although there are many of us who constantly and in myriad ways seek to counter the lie spoken in the meaning of
hateful words like "nigger" and "faggot," it is a nearly impossible burden to bear when one encounters hateful
speech face-to-face.

Culture of Hate Speech


Speech can be more than words on a sign, it can be a cultural
practice DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Just because one can express the idea or message embodied by a practice such as white supremacy does not
necessarily equate that practice with the idea. Slavery was an idea as well as a practice, but the Court recognized
the inseparability of idea and practice in the institution of slavery when it held the enabling clause of the thirteenth
amendment clothed Congress with the power to pass "all laws necessary and proper for abolishing all badges and
incidents of slavery in the United States."' This understanding also informs the regulation of speech/conduct in the
public accommodations provisions of the Civil Rights Act of 1964 discussed above. When the racist restaurant or
hotel owner puts a "whites only" sign in his window, his sign is more than speech. Putting up the sign is more than
an act excluding black patrons who see the sign. The sign is part of the larger practice of segregation and white
supremacy that constructs and maintains a culture in which non-whites are excluded from full citizenship.

Segregation
Racial speech restricts the liberty of non-white people DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Racism is both 100% speech and 100% conduct. Discriminatory conduct is not racist unless it also conveys the
message of white supremacy-unless it is interpreted within the culture to advance the structure and ideology of
white supremacy. Likewise, all racist speech constructs the social reality that constrains the liberty of non-whites
because of their race. By limiting the life opportunities of others, this act of constructing meaning also makes racist
speech conduct.

Policing speech creates a greater racial divide DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Professor Matsuda also argues that only hate speech directed at members of subjugated groups by members of
dominant groups forfeits first amendment protection. 56 Thus, while epithets directed at blacks, for example, would
be actionable, those directed at whites would not. Although the vulnerability of historically disadvantaged groups has
brought racial insults to a new prominence, it seems wrong both pragmatically and in principle to condition first
amendment protection or the political positions of the speaker's and target's ethnic groups. Professor Matsuda
acknowledges that the line drawing becomes harder if the hateful speech is directed at the white target's gender,
sexual preference, religious affiliation, age, poverty, or handicap. 57 Further confusion exists because Professor
Matsuda concedes that a group's status as subjugated can change position over time and in different localities.58
She professes herself unconcerned by the sheer difficulty of such determinations, dismissing concerns with the
observation: "The larger question is how anyone knows anything in life or in law. To conceptualize a condition called
subordination is a legitimate alternative to denying that such a condition exists." 59 But surely one can acknowledge
the reality of social inequality without accepting a legal procedure, backed by the powerful apparatus of criminal
prosecution, which determines whether an offended individual belongs to a relevant group that suffers subordination
in a certain place and time.

Real World Examples


Impact of the limitation of free speech through the lense of
pornography and the paralleled application to colleges DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
In an insightful article considering the constitutional implications of government regulation of pornography, Frank
Michelman has observed that the idea of state action plays a crucial, if unspoken, role for judges and civil
libertarians who favor an absolute rule against government regulation of private pornographic publications (or racist
speech), even when that expression is causative "of effects fairly describable ... as deprivations of liberty and
denials of equal protection of the laws." He notes that judges and civil libertarians would not balance the evils of
private subversions of liberty and equal protection against the evils of government censorship because "the
Constitution, through the state action doctrine, in effect tells them not to." Michelman suggests that the state action
doctrine, by directing us to the text of the fourteenth amendment, diverts our attention from the underlying issuewhether we should balance the evils of private deprivations of liberty against the government deprivations of liberty
that may arise out of state regulations designed to avert those private deprivations.

Supreme Courts ruling on offensive language as free speech on


campuses DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Leading cases on the protection for other types of offensive speech bear out this emphasis on the incompetence of
the censor. The Supreme Court's opinion in Cohen v. California deserves particular mention, both because it is such
an excellent opinion and because the case typifies the era in which student free speech principles were developed.
Cohen was arrested for wearing in a courthouse a jacket bearing the message, "Fuck the Draft." The Supreme
Court held that his consequent conviction for "offensive conduct" violated the first amendment. In his opinion for the
Court, Justice Harlan rejected the State's argument that it could constitutionally punish "public utterance of this
unseemly expletive in order to maintain what [it] regard[s] as a suitable level of discourse within the body politic.""'
Harlan wrote that in a "diverse and populous society" such as the United States, "no readily ascertainable general
principle exists" for the state to decide which expressions should be prohibited. After all, "one man's vulgarity is
another man's lyric. Indeed, we think it largely because governmental officials cannot make principled distinctions in
this area that the Constitution leaves matters of taste and style so largely to the individual." Cultural pluralism and
relativity of values deprive the state of any legitimacy in seeking to limit the forms of speech in order to strengthen
overall communication. Because the censor cannot know what manner of speech most effectively communicates
ideas to people of differing cultures and abilities, it has no principled basis for outlawing any form of speech. Harlan
follows his appraisal of governmental incompetence to censor with a warning about the dangers of bad faith:
"Indeed, governmental units might soon seize upon the censorship of particular words as a convenient guise for

banning the expression of unpopular views."' Thus, Cohen relies on a view of the state as an institution at once
without moral commitments sufficient to provide justifiable criteria for prohibiting certain forms of speech, and
subject to popular control such that prohibition of any form of speech likely will entail the pursuit of the political
program of whatever majority might temporarily gain control of government machinery.

Protected Free Speech


Face to Face racial insults are not aligned with goals of First
Amendment, yet protected DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Face-to-face racial insults, like fighting words, are undeserving of first amendment protection for two reasons. The
first reason is the immediacy of the injurious impact of racial insults. The experience of being called "nigger," "spic,"
"Jap," or "kike" is like receiving a slap in the face. The injury is instantaneous. There is neither an opportunity for
intermediary reflection on the idea conveyed nor an opportunity for responsive speech. The harm to be avoided is
both clear and present. The second reason that racial insults should not fall under protected speech relates to the
purpose underlying the first amendment. If the purpose of the first amendment is to foster the greatest amount of
speech, then racial insults disserve that purpose. Assaultive racist speech functions as a preemptive strike. The
racial invective is experienced as a blow, not a proffered idea, and once the blow is struck, it is unlikely that dialogue
will follow. Racial insults are undeserving of first amendment protection because the perpetrator's intention is not to
discover truth or initiate dialogue but to injure the victim.

Racial speech is allowed under the First Amendment DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
What constitutional status can racial insults claim in society at large? At first blush, one might be surprised that the
first amendment protects insults to individuals or groups at all. Not even the staunchest supporter of the most
absolute view of first amendment protection argues that racial insults have any significant social or individual value.8
Female and minority writers and witnesses have chronicled in moving terms the hurt and alienation that such insults
inflict.9 Moreover, the denial of a legal remedy against the perpetrators of vilification of minorities lends credence to
the view that white dominated institutions comfortably tolerate racism through complicity or insensitivity. The spread
of this view saps the strength of societal institutions, already frustrated in pursuit of service to all, by weakening
confidence in them by an important constituency. Finally, and not least important, racial insults, which are absurd as
well as demoralizing, lower the standard of discourse about difficult and important issues to that of the least
reflective and constructive members of the community

Fighting words would be allowed under Aff, even though they

cause harm DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The "fighting words" doctrine encompasses direct, scurrilous verbal abuse of an individual or small group likely to
incite an immediate breach of the peace. 32 Although the Supreme Court has placed fighting words outside the
protection of the first amendment, it has also narrowed the definition of this category of speech over time.33 For
speech to fall within the fighting words exception, the Court requires that it have little or no social value and that the
prohibition be justified by realistic concerns about a breach of the peace,34 not by official antipathy to the content of
the speech.

Free Zones
College regulations needed to create a safe environment for
students DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The proposed Stanford regulation, and indeed regulations with considerably broader reach, can be justified as
necessary to protect a captive audience from offensive or injurious speech. Courts have held that offensive speech
may not be regulated in public forums such as streets and parks where a listener may avoid the speech by moving
on or averting his eyes, but the regulation of otherwise protected speech has been permitted when the speech
invades the privacy of the unwilling listener's home or when the unwilling listener cannot avoid the speech. Racists
posters, flyers, and graffiti in dorms, classrooms, bathrooms, and other common living spaces would fall within the
reasoning of these cases. Minority students should not be required to remain in their rooms to avoid racial assault.
Minimally, they should find a safe haven in their dorms and other common rooms that are a part of their daily
routine. I would argue that the university's responsibility for ensuring these students received an equal educational
opportunity provides a compelling justification for regulations that ensure them safe passage in all common areas. A
black, Latino, Asian or Native American student should not have to risk being the target of racially assaulting speech
every time she chooses to walk across campus. The regulation of vilifying speech that cannot be anticipated or
avoided would not preclude announced speeches and rallies where minorities and their allies would have an
opportunity to organize counter-demonstrations or avoid the speech altogether.

Racism is woven into the modern world, so limiting speech in


college will have no effect DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
But it is not just the prevalence and strength of the idea of racism that makes the unregulated marketplace of ideas
an untenable paradigm for those individuals who seek full and equal personhood for all. The real problem is that the
idea of the racial inferiority of non-whites infects, skews, and disables the operation of the market (like a computer
virus, sick cattle, or diseased wheat). Racism is irrational and often unconscious. Our belief in the inferiority of nonwhites trumps good ideas that contend with it in the market, often without our even knowing it. In addition, racism
makes the words and ideas of blacks and other despised minorities less saleable, regardless of their intrinsic value,
in the marketplace of ideas. It also decreases the total amount of speech that enters the market by coercively
silencing members of those groups who are its targets.
Racism is an epidemic infecting the marketplace of ideas and rendering it dysfunctional. Racism is ubiquitous. We
are all racists. Racism is also irrational. Individuals do not embrace or reject racist beliefs as the result of reasoned
deliberation. For the most part, we do not recognize the myriad ways in which the racism pervading our history and
culture influences our beliefs. In other words, most of our racism is unconscious.

Limiting racist speech negatively impacts the market place of free


speech DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Finally, racist speech decreases the total amount of speech that reaches the market. I noted earlier in this Article the
ways in which racist speech is inextricably linked with racist conduct. The primary purpose and effect of the
speech/conduct that constitutes white supremacy is the exclusion of non-whites from full participation in the body
politic. Sometimes the speech/conduct of racism is direct and obvious. When the Klan bums a cross on the lawn of
a black person who joined the NAACP or exercised his right to move to a formerly all-white neighborhood, the effect
of this speech does not result from the persuasive power of an idea operating freely in the market. It is a threat, a
threat made in the context of a history of lynchings, beatings, and economic reprisals that made good on earlier
threats, a threat that silences a potential speaker. 150 The black student who is subjected to racial epithets is
likewise threatened and silenced. Certainly she, like the victim of a cross-burning, may be uncommonly brave or
foolhardy and ignore the system of violence in which this abusive speech is only a bit player. But it is more likely that
we, as a community, will be denied the benefit of many of her thoughts and ideas.

Free expression and discourse is corner stone of educationTinker


proves DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Tinker explicitly rejected any distinction between the rights of students in class and out of class.' 38 Indeed, it
justified recognition of student free speech rights on school property by quoting from the Court's then recent opinion
affirming a constitutional right of academic freedom, which rhetorically proclaimed that "[t]he classroom is peculiarly
the 'marketplace of ideas.' -139 Thus, the Court held that the very nature of education embraces free expression,
and that free speech was students' right not only in the classroom during class time but throughout the campus and
at all hours. The Court justified this extension by noting the educational value of "intercommunication" among
students, 140 an observation undoubtedly true but which confuses the rigors of structured instruction with the
benefits of experience

Quantifiable Suffering
Racially motivated speech has long lasting psychological impacts
DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Psychic injury is no less an injury than being struck in the face, and it often is far more severe.1 14 Brown speaks
directly to the psychic injury inflicted by racist speech in noting that the symbolic message of segregation affected
"the hearts and minds" of Negro children "in a way unlikely ever to be undone."1 15 Racial epithets and harassment
often cause deep emotional scarring, and feelings of anxiety and fear that pervade every aspect of a victim's life.
Many victims of hate propaganda have experienced physiological and emotional symptoms ranging from rapid pulse
rate and difficulty in breathing, to nightmares, post-traumatic stress disorder, psychosis and suicide.'

Undue damages to reputations can come out of Constitutionally


protected speech DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
A second injury identified in Brown, and present in my example, is reputational injury. "[L]ibelous speech was long
regarded as a form of personal assault... that government could vindicate.., without running afoul of the
Constitution."' "Although New York Times v. Sullivan and its progeny have subjected much defamatory speech to
constitutional scrutiny-on the reasoning that "debate on public issues should be uninhibited, robust and wide-open"
and should not be "chilled" by the possibility of libel suits-these cases also demonstrate a concern for balancing the
public's interest in being fully informed with the competing interest of defamed persons in vindicating their
reputation.' Brown is a case about group defamation. The message of segregation was stigmatizing to black
children. To be labeled unfit to attend school with white children injured the reputation of black children, thereby
foreclosing employment opportunities and the right to be regarded as respected members of the body politic. An
extensive discussion on the constitutionality or efficacy of group libel laws is beyond the scope of this essay.
However, it will suffice to note that whereas Beauharnais v. Illinois, which upheld an Illinois group libel statute, has
fallen into ill repute; and is generally considered to have been overruled implicitly by Sullivan, Brown remains an
instructive case. By identifying the inseparability of discriminatory speech and action in the case of segregation,
where the injury is inflicted by the meaning of the message, Brown limits the scope of Sullivan. Brown reflects that
racism is a form of subordination that achieves its purposes through group defamation.

Blacks sacrifice and people dont know that they do DJS


Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
Derrick Bell has noted that often in our constitutional history the rights of blacks have been sacrificed because
sacrifice was believed necessary to preserve the greater interests of the whole. 157 It is not just the actual sacrifice
that is racist but also the way the "whole with the greater interests" gets defined. Today in a world committed to the
ideal of equality, we rarely notice the sacrifice or how we have avoided noticing the sacrifice by defining the interests
of whites as the whole, "the regular." When we think this way, when we see the potential danger of incursions on the
first amendment but do not see existing incursions on the fourteenth amendment, our perceptions have been
influenced by an entire belief system that makes us less sensitive to the injury experienced by non-whites. Unaware,
we have adopted a world view that takes for granted black sacrifice.

Racial slurs cause a lower performance in universitys for those


affected DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Racial slurs more profoundly burden the striving toward educational attainments of their victims than do noise or
inane sales patter. Minority scholars have been eloquent in expressing the disabling effects racial insults work on
minority students and faculty. 98 These harms are exacerbated by the social position of minorities at most American
universities where until recently they studied only in small numbers. Racial insults obviously burden the ability of
targets to pursue their studies; infuriated and embarrassed, their emotions may push them toward self-protection or
retaliation. The university should have an obligation to protect its students from such disabling harassment. If an
employer failed to take corrective action when an employee was racially insulted or sexually harassed, the
employee would have an action against the employer under Title VII for fostering a hostile work environment;99 it
seems that only a lack of imagination on the part of the bar has precluded analogous actions against universities
under Title VI.

Democracy
Free speech does not mean a free society DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
In striking a balance, we also must think about what we are weighing on the side of speech. Most blacks-unlike
many white civil libertarians-do not have faith in free speech as the most important vehicle for liberation. The first
amendment coexisted with slavery, and we still are not sure it will protect us to the same extent that it protects
whites. It often is argued that minorities have benefited greatly from first amendment protection and therefore should
guard it jealously. We are aware that the struggle for racial equality has relied heavily on the persuasion of peaceful
protest protected by the first amendment, but experience also teaches us that our petitions often go unanswered
until they disrupt business as usual and require the self-interested attention of those persons in power.

Universities should not be considered a part of the state DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
Despite the rigidities of current doctrine, a state university ought not be considered a state actor when it enacts
restrictions on speech necessary to its educational purpose and its commitments to truth and humanism. For
example, a university can dismiss an untenured professor because it believes his manner of speaking to be
confused or banal, an authority denied the state itself.114 If one accepts that a university can ban racial insults
because they hamper the search for truth or the development of students, the same ends for which untenured
professors are sacked, then one should agree that the university should not be treated as a state actor when it
adopts such restrictions. "

Academic Discourse
Universities can enhance public discourse by limiting speech in
certain cases DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The university should properly be seen as a distinct social entity, whose commitment to enhancing the quality of
speech justifies setting minimum standards for the manner of speech among its members. This distinction exists in
tension with the constitutional or political principle that accords students first amendment rights of freedom of
expression against state universities. The difficulty comes in articulating the bases for these ideas adequately to
permit the law to draw an appropriate boundary between the educational authority of the school and the political
freedom of the student. For a variety of reasons, courts have performed this function inadequately, so that most
lawyers now seem to accept the premise that a student's racial vilification of another must be examined as a
component of the student's political rights. It seems to me that this phrasing of the question leaves out the
indispensable values of academic life.

Universities are fundamentally different than a whole nation


speech limitations are beneficial DJS
Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The university has a corporate reverence for speech as the embodiment of, and stimulus to, thinking and
knowledge.84 Implicit in the university's core function is the regulation of expression to enhance its quality.
Membership in the academic community is restricted to those who possess the talent and training to teach or learn
at a high level. The academic speech of the teachers and the students is subject to disciplinary norms deemed to
facilitate criticism and discourse; those who do not meet the standards of speech set by the university are subject to
penalties-- students through grades and faculty through the denial of promotion or tenure. These restrictions exist
because academics traditionally believe that the ends of scholarship and teaching are advanced by adherence to
collective criteria. Thus, the fact that universities function through speech and the criticism of ideas does not mean
that speech ought to be under less restriction there than in society as a whole; on the contrary, both scholarship and
learning necessarily involve the discipline of speech to improve it.

Truth and education is a universities goalspeech may need limits

to achieve goal DJS


Byrne,J.Peter.[AssociateProfessor,GeorgetownUniversityLawCenter.]"RacialInsults
andFreeSpeechWithintheUniversity."Geo.LJ79(1990):399.
The university's first commitment is to truth. As argued above, the university does not manifest this commitment to
truth by licensing all expression. Rather, truth is equated with knowledge, precepts, or hypotheses tentatively
established through painstaking, expert, and disinterested inquiry.95 Students come to the university to learn
disciplines of thought, whether in the sciences or the humanities, that are more likely to solve problems or contribute
to constructive discourse than the more subjective, flabbier, and less coherent thinking to which they were limited
upon matriculation. The commitment to forms of thought and expression conducive to truth and coherence lies at
the core of academic values; without this commitment, the university is a scam. Racial insults have no status among
discourse committed to truth. They do not attempt to establish, improve, or criticize any proposition or object of
inquiry. They do not even have enough truth value to be false, to represent a discarded alternative idea. Racial
insults communicate only scorn or hatred irrationally based on immutable characteristics of the target. Their goal
can only be to diminish the victim or to accentuate the belonging of the speaker to a group outside of the despised
circle. They may relieve emotional tension within the speaker, but only at the greater cost of increasing tension
within and among the audience.

Even if speech codes are unconstitutional, they provide important


guidance .LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Speech codes have practical significance: a written policy offers guidance, both to those applying it and those
to whom it applies.65 In other words, regulators look to the policy to guide administra tive decisions, while
regulatees look to the policy to guide behavior, having been put on notice that certain actions will subject them
to sanctions.66 In addition to this clarifying function, speech policies serve an important purpose during
litigation. Even if a policy violates free speech, its mere existence provides the court with a touchstone for
examining both facial and as-applied challenges. In this way, even unconstitutional speech codes help facilitate
the First Amendment by constraining regulatory discretion and providing a written standard that judges can
evaluate.

Striking down speech codes encourages universities to threaten


first amendment rights with discretionary decision making.
LMW.
Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,AndThe
HostileSpeechEnvironment Source:VirginiaLawReview,Vol.98,No.7(November
2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Paradoxically, then, the unconstitutionality of speech codes on free speech grounds has made protecting free
speech more diffi cult: as long as the impulse to regulate speech remains,68 institutions can continue
handicapping speech while skirting the aforemen tioned practical constraints of a formal policy. Because these
formal policies were, or are, likely to be struck down, many colleges and universities now employ systems of
ad hoc, informal, discretionary decision making that are "potentially more dangerous and insidiously]
threatening] to First Amendment protection" than the codes they replaced.69

The discretionary system has an overall chilling effect. LMW.


Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Uni versity'70 illustrates the problem with a
discretionary system: gov ernment bureaucrats serve as roving commissioners, picking and choosing which
speech to regulate, often on the grounds that cer tain groups object to it.71 The danger is threefold. First, the
absence of a written policy leaves a vacuum. By their very nature, decisions made on a case-by-case basis
lack debated, agreed-upon, and dis seminated principles that can guide action.72 Thus, one cannot ex ante
abide by guidelines that are unknowable until after one speaks. The result is the commonly cited "chilling
effect": speakers will say less, even if their speech would be constitutionally pro tected, because they cannot
be assured that they will not be pun ished for it.73

They also allow for discrimination. LMW.


Juhan,SCagle,(*LawClerk,U.S.DistrictCourtfortheNorthernDistrictofAlabama;
J.D.,UniversityofVirginiaSchoolofLaw;B.A.)FreeSpeech,HateSpeech,And
TheHostileSpeechEnvironmentSource:VirginiaLawReview,Vol.98,No.7
(November2012),pp.15771619Publishedby:VirginiaLawReviewStableURL:
http://www.jstor.org/stable/23333530
Second, informal, standardless decision-making processes about what speech should be allowed are viewed
with particular skepticism in First Amendment doctrine because they both contribute to the chilling effect and
enhance the risk of discriminatory or arbitrary regulation.74 Ad hoc judgments allow universities to sanction
speech because they disapprove of it, which is precisely the outcome that the First Amendment was designed
to prevent.

Without free speech, we risk losing freedom of thought and


encouraging conformity. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
A number of commentators have sounded the alarm that freedom of thought is being policed
with dictatorial determination and that conformity of ideas is replacing the liberal principle of
open intellectual inquiry that is at the core of the role of the university. They cite dangers to the
intellectual climate on campus, to the principles being instilled in the next generation of
graduates and to the values that animate American polity writ large. Washington Post columnist
Catherine Rampell wrote in October 2015 in response to the Wesleyan student newspaper
controversy:
Crippling the delivery of unpopular views is a terrible lesson to send to impressionable minds and
future leaders, at Wesleyan and elsewhere. It teaches students that dissent will be punished, that
rather than pipe up they should nod along. It also teaches them they might be too fragile to
tolerate words that make them uncomfortable; rather than rebut, they should instead shut down,
defund, shred, disinvite.236

Speech policing risks turning our society into an illiberal


democracy. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Writing in New York magazine, Jonathan Chait articulated these risks, and the risks that political
correctness poses to democracy, in an article entitled Can We Start Taking Political Correctness
Seriously Now?:
The reason every Marxist government in the history of the world turned massively repressive is
not because they all had the misfortune of being hijacked by murderous thugs. Its that the
ideology itself prioritizes class justice over individual rights and makes no allowance for
legitimate disagreement. American political correctness has obviously never perpetrated the
brutality of a communist government, but it has also never acquired the powers that come with
full control of the machinery of the state. The continuous stream of small-scale outrages it
generates is a testament to an illiberalism that runs deep down to its core
The scene in Columbia [Missouri] and the recent scene in New Haven share a similar structure:
jeering student mobs expressing incredulity at the idea of political democracy. As far as the
students are concerned, they represent the cause of anti-racism, a fact that renders the need for
debate irrelevant. They are carrying out the ideals of a movement that regards the
delegitimization of dissent as a first-order goal. 237

Without free speech, the moral authority is ceded to use free


speech to protect bigotry. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Writing for the Atlantic, writer and social critic Caitlin Flanagan discerned notes of Stalinism in
the campus conflicts, writing that while mainstream comedians have become leery of campus
gigs for fear of triggering a politically correct backlash against their jokes, the moral authority is
being ceded to those who invoke free speech to protect bigotry:
O, Utopia. Why must your sweet governance always turn so quickly from the Edenic to the
Stalinist? The college revolutions of the 1960sthe ones that gave rise to the social-justice
warriors of todays campuseswere fueled by free speech. But once youve won a culture war,
free speech is a nuisance, and eliminating language becomes a necessity.
Meanwhileas obvious reaction to all of thisfrat boys and other campus punksters regularly
flout the thought police by staging events along elaborately racist themes, events that, while
patently vile, are beginning to constitute the free-speech movement of our time.238

Speech policing is a new form of intolerance. LWZ


PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Atlantic staff writer Conor Friedersdorf wrote in November 2015 about what he called the new
intolerance on campuses.239 He called activists at Yale bullies for their angry response to
assistant house master Erika Christakiss email questioning a campus directive on avoiding
offense in Halloween costumes. To Friedersdorf her email was a model of relevant, thoughtful,
civil engagement:
Hundreds of Yale students are attacking them, some with hateful insults, shouted epithets, and a
campaign of public shaming. In doing so, they have shown an illiberal streak that flows from
flaws in their well-intentioned ideology.
Their mindset is anti-diversity, anti-pluralism, and anti-tolerance, a seeming data-point in favor of
April Kelly-Woessners provocative argument that young people today are less politically tolerant
than their parents generation.240

Even if social justice causes are good, the means used to support
them are wrong. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Even some who are sympathetic to the demands of student protesters have questioned certain
of their tactics. In a January 14, 2016 essay in The New York Review of Books, The Trouble at
Yale, Georgetown Law Professor David Cole wrote:
The emergence of a nationwide movement for racial justice, in which students have been
inspired to voice their grievances and challenge the status quo, is a welcome change from the
much-bemoaned apathy of previous generations. But the students have sometimes sought to
suppress or compel the expressions of others, a fundamentally illiberal tactic that is almost
certain to backfire, and that risks substituting symbol for substance in the struggle for
justice.241

A focus on speech policing reinforces a culture of victimhood. LWZ


PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
A series of articles published between 2014 and 2016 shared the view articulated perhaps most
vividly by Scott Greer of The Daily Caller who, in November 2015, wrote that students were
whiny babies attempting to stay within a cocoon of protection from any possible offense.242
By talking about their feeling unsafe because of offensive speech, he argued, students have
not only lost perspective but are conflating emotional distress with actual physical harm,
retreating from vigorous engagement with differing and even objectionable ideas, and nurturing
a self-fulfilling pathology within themselves.243
Among the most prominent exponents of this point of view are Greg Lukianoff and his coauthor
psychologist and New York University business professor Jonathan Haidt in their widely discussed
September 2015 Atlantic cover story, The Coddling of the American Mind.244 The pair argued
that this hypersensitivity and self-protectiveness are crippling both students mental health and
their ability to learn:
What exactly are students learning when they spend four years or more in a community that
polices unintentional slights, places warning labels on works of classic literature, and in many
other ways conveys the sense that words can be forms of violence that require strict control by
campus authorities, who are expected to act as both protectors and prosecutors?
It prepares them poorly for professional life, which often demands intellectual engagement
with people and ideas one might find uncongenial or wrong. The harm may be more immediate,
too. A campus culture devoted to policing speech and punishing speakers is likely to engender
patterns of thought that are surprisingly similar to those long identified by cognitive behavioral
therapists as causes of depression and anxiety. The new protectiveness may be teaching
students to think pathologically
The recent collegiate trend of uncovering allegedly racist, sexist, classist, or otherwise
discriminatory microaggressions doesnt incidentally teach students to focus on small or
accidental slights. Its purpose is to get students to focus on them and then relabel the people
who have made such remarks as aggressors245

Discomfort is to be expected in a classroom. LWZ


PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
In August 2014, the AAUP s Committee A on Academic Freedom and Tenure issued a report on
trigger warnings that said:
The presumption that students need to be protected rather than challenged in a classroom is at
once infantilizing and anti-intellectual. It makes comfort a higher priority than intellectual
engagement
Some discomfort is inevitable in classrooms if the goal is to expose students to new ideas, have
them question beliefs they have taken for granted, grapple with ethical problems they have
never considered, and, more generally, expand their horizons so as to become informed and
responsible democratic citizens. Trigger warnings suggest that classrooms should offer protection
and comfort rather than an intellectually challenging education. They reduce students to
vulnerable victims rather than full participants in the intellectual process of education. The effect
is to stifle thought on the part of both teachers and students who fear to raise questions that
might make others uncomfortable.246

We hurt student resilience when we dont challenge students. LWZ


PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
In June 2016 in the New York Times, columnist Frank Bruni quoted Nate Kreuter, an assistant
professor of English at Western Carolina University, as saying:
[W]eve contributed to the weakening of student resilience, because were so willing to meet
their needs that they never have to suffer. That makes them incredibly vulnerable when things
go wrong, as they invariably do. He was speaking in the context of sharp upticks at many
colleges in the number of students reporting anxiety and depression and turning to campus
mental health clinics for help.247
In May 2014, cultural commentator Kathleen Geier wrote in The Baffler specifically about trigger
warnings:
But, particularly in an academic context, theres something infantilizing and inherently antiintellectual about flagging every potentially disturbing work with a trigger warning. The trigger
warning is an engraved invitation to opt out of a challenging intellectual experience. To the
extent trigger warnings proliferate, they encourage habits of mind that are not conducive to
intellectual inquiry.248 Some argue that the emphasis on students as vulnerable victims is
exiling certain difficult subjects from campus conversations and curricula. Harvard University law
professor Jeannie Suk Gersen wrote in The New Yorker that students seemed increasingly anxious
about classroom discussion, particularly about sexual violence. She bemoaned the fact that this
anxiety was chilling the teaching of rape law, which feminists had fought so hard to add to the
curriculum:
[Student womens organizations] also ask criminal-law teachers to warn their classes that the
rape-law unit might trigger traumatic memories. Individual students often ask teachers not to
include the law of rape on exams for fear that the material would cause them to perform less
well. One teacher I know was recently asked by a student not to use the word violate in class
as in Does this conduct violate the law?because the word was triggering. Some students
have even suggested that rape law should not be taught because of its potential to cause
distress.249
These commentators worry that current campaigns and concepts risk turning the university from
an intellectual breeding ground to a psychological nurturing ground. They are concerned that
overemphasis on vulnerabilities may exacerbate rather than ameliorate student anxieties.

Imposing limits on speech denies students agencies are reinforces


a culture of authoritarianism. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Some critics are concerned that the top-down solutions sought by studentscampus-wide
policies, administrative interventions, disciplining of those responsible for errant speechcedes
too much power to university administrators, depriving the students of the ability to shape their
own communities and denying them of a sense of agency required to solve ones own problems.
They worry that by favoring solutions that center on official intervention to enforce social norms
or change attitudes, students are ceding power and giving in to centralization and even
authoritarianism.
In a November 2015 article in The Atlantic, Conor Friedersdorf urged students to understand
and universities to teachthat students possess far greater power and authority than they may
recognize or claim:
[These ideas] ought to be disputed rather than indulged for the sake of these students, who need
someone to teach them how empowered they are by virtue of their mere enrollment; that no one
is capable of invalidating their existence, full stop; that their worth is inherent, not contingent;
that everyone is offended by things around them; that they are capable of tremendous
resilience; and that most possess it now despite the disempowering ideology foisted on them by
well-intentioned, wrongheaded ideologues encouraging them to imagine that they are not
privileged.250

College limitations on speech trade off with student led efforts for
real change. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
In his Novemmber 2015 artitle in Tablet Magazine, Person Up, Yale, Yale graduate and adjunct
professor Mark Oppenheimer describes students who have elected to suspend their adulthood,
to put it in escrow for four years, and to willingly bow before the judgment of their elders.251
He suggests that students have been overly focused on seeking solutions from administrators,
rather than taking matters into their own hands: If ending racism (or racist Halloween
costumes) is your goal, it will actually work better to shame students who wear such costumes
than to ask committees to send annual emails I would beg these studentsmy studentsto
look at us, their teachers and administrators, and ask themselves: Do you really want more of
us? More control, more intrusion, more say-so?252
Writing in December, 2014 in Inside Higher Ed, former Barnard College President Judith Shapiro
notes a tendency toward what we might see as self-infantilization on the part of students, who
are now in the habit of seeking formal institutional support and approval for the kinds of
activities they used to be capable of managing themselves.253
The American Enterprise Institute points out that this emphasis on top-down solutions could have
concrete financial costs for students. They have argued that he big winners in the current bout of
campus protests will be administrators who will be able to justify adding multiple non-faculty
positions to university rosters in order to deal with student demands, passing on the costs to
students in the form of higher tuition and fees.254

Limiting speech does a disservice for students who must be


prepared to confront it outside of the university. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Numerous analysts and commentators have voiced concern that the current controversies will
result in a generation of students who lack resilience and are poorly prepared to navigate the
personal and professional dimensions of adult life. These issues are compounded by what some
see as the problem of upper middle class helicopter parents who hover over their childrens
every move, certain commentators worry that this trend unhelpfully prolongs childhood and
adolescence, delaying the time at which young adults are ready to handle themselves in the
world. Lukianoff and Haidt ask: What are we doing to our students if we encourage them to
develop extra-thin skin just before they leave the cocoon of adult protection?255
In Newsweek, writer and journalist Nina Burleigh suggested universities were at risk of sending
their students off into the world woefully under-prepared:
Graduates of the Class of 2016 are leaving behind campuses that have become petri dishes of
extreme political correctness and heading out into a world without trigger warnings, safe spaces
and free speech zones, with no rules forbidding offensive verbal conduct or microaggressions,
and where the names of cruel, rapacious capitalists are embossed in brass and granite on
buildings across the land. Baby seals during the Canadian hunting season may have a better
chance of survival.25

Limits on speech deter academic inquiry and hurt the most


vulnerable. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Some commentators are concerned that the net effect of protests, online outcry and even
pointed forms of counter-speech is to relegate certain legitimate viewpoints, attitudes and ideas
to the outer margins of campus life. The fear is that such an approach can shut down inquiry,
deter dissent, and reify orthodoxies that do not deserve to be above question. The concern is
that ideological fervor, rather than forceful reasoning, is what has drawn these new and narrow
boundaries of permissible speech.
In July 2015, writing for Newsweek about efforts in the United Kingdom to expunge radical
extremism from university campuses, Thomas Scotto decried efforts to delimit the acceptable
bounds of speech, arguing that free speech rights exist to safeguard precisely that speech that
may be most vulnerable to censure:
The right to free speech exists precisely to protect whatever speech the majority finds abhorrent
and so is inclined to censor. Many of the ideas that led to substantial moral progress in history

emerged out of viewpoints that swam against the currents of public opinion. And as John Stuart
Mill famously noted, even odious ideas can lead to progress, as we sharpen our understanding of
the truth by observing its collision with error in public debate.257

Limits on speech empirically deter important debates and hurt


intellectual discourse. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Jeffrey Aaron Snyder of Carleton College writing for Inside Higher Ed, notes some of the topics
and views that students may hesitate to voice. Students, he writes, are:
understandably reluctant to have frank conversationsin classrooms and in proverbial latenight
bull sessionsabout questions that might veer into controversial territory. Questions like: Is
sexual orientation hard-wired or a personal choice? How do you tell the difference between
cultural mixture and cultural appropriation? And is the Black Lives Matter movement achieving
its objectives?
Snyder goes on to argue that by declaring some arguments functionally off-limits on campus, the
quality of intellectual discourse writ large will be compromised:
If colleges and universities shrink from engaging with materials students find too sensitive,
controversial or offensive, the growth of their critical thinking skills will be severely stunted. We
already have a tendency to misrepresent ideas that we disagree with. And thats when we
actually expose ourselves to them. Only 16 percent of college students say Americans do a good
job at seeking out and listening to differing viewpoints from their own. A just say no approach
to objectionable materials will turn us into intellectual sloths. Without the stimulation to
interrogate our basic assumptions or to consider alternatives to our preferred explanations, our
own ideas will devolve into pathetic caricatures. If you are in favor of affirmative action, for
instance, how sophisticated can your position really be if you refuse to engage with the claims
and evidence advanced by its critics?258
Writing for the Williams Record in early 2016 Williams College Art History Professor Michael Lewis
decries what he calls a blacklist of speakers blocked from airing their views on campus. He
offers a personal cautionary tale about the risks of declaring certain opinions and perspectives
or even political candidatesout of bounds. He recounts being in college during the
administration of Jimmy Carter, during which time:
I never heard the slightest suggestion that mighty shifts in American public opinion were
underway that would lead to the Ronald Reagan landslide of 1980. My professors probably were
unaware of their omission. But by being unable to give students a fair and well-informed
summary of the basic tenets of the Reagan platform, other than a mocking caricature of it,
Haverford failed in its duty to prepare its students for American life.259
Free speech advocates argue that the exclusion of certain ideas and perspectives from campus
discourse not only violates principles of free expression, but also impoverishes the university
intellectual environment in ways that can cause lasting damage to students and to public
discourse.

Censorship
Censorship of student speech leads to abuse by educators DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
Post-Hazelwood tales of high school officials engaging in censorship abound. An Indiana principal censored an
accurate story about a girls tennis coach who stole $1,000 that players had paid for court time. A New York
administrator banned a true report that his school of 3,600 students contained only two functional restrooms. A
Florida principal fired the high schools yearbook editor after she opposed his decision not to run a senior picture of
a lesbian student who was wearing a tuxedo. In Tennessee, an administrator confiscated every copy of a newspaper
that contained stories about birth control and tattoos. These instances of censorship are but a small sample of the
hundreds that the SPLC has documented

Universities can take advantage of Hazelwood and censor voice and


still be under the First Amendment DJS
Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
More significantly for the realm of American collegiate press freedom, the decision marked the first time that an en
banc circuit court ever explicitly applied the Hazelwood framework to an extracurricular student publication.99 The
court rejected the idea that college students status as adults frees them from Hazelwoods grasp, noting that though
age is a relevant factor as to students maturity, it is irrelevant to other concerns expressed in Hazelwood, such as
the desire to ensure high standards for the student speech that is disseminated under [the schools] auspices and
the goal of dissociating the school from any position other than neutrality on matters of political controversy.100
The court also refused to draw a bright-line distinction between curricular and extracurricular student speech, though
it pointed to evidence that the Innovator reasonably could be considered a limited public forum under Hazelwood.
101 In a vigorous dissent, Circuit Judge Evans argued that the majority underestimated the significance that
Hazelwood attached to students age and that the secondary and postsecondary environments are not
analogous.102 The dissent also observed that no other post-Hazelwood case would suggest to a reasonable
person . . . that she could prohibit publication simply because she did not like the articles [the paper] was
publishing103 and warned that Hosty now gives the green light to school administrators to restrict student speech
in a manner inconsistent with the First Amendment.

Limitation of any speech has a chilling effect on the future of free


speech DJS

Sanders,Chris.[ACPP'scommunicationsdirector]"Censorship101:AntiHazelwood
LawsandthePreservationofFreeSpeechatCollegesandUniversities."Ala.L.
Rev.58(2006):159.
Because Hazelwood, intentionally or otherwise, greatly expanded secondary school officials powers to censor
student speech on a host of topics,115 college effectively provides many young people with their first taste of largely
unfettered free speech rights. If Hazelwood follows students to universities, however, their introduction to a fully
functioning free press could be delayed for years longer. This result would be disastrous for the journalism
profession, which soon would find its ranks filled with freshly minted journalism school graduates inadequately
prepared to pursue controversial stories aggressively and to endure the backlash therefrom. It also likely would
exacerbate what appears to be a disturbing trend in American society: the existence of a sizable plurality of citizens
who do not understand the importance of free speech rights. A 2004 University of Connecticut survey of more than
112,000 high school students found that 32% of them think the press has too much freedom and that 36% believe
newspapers should clear their reporting with the government before publication.116 Meanwhile, the 2005 State of
the First Amendment survey discovered that those beliefs often do not change much once citizens reach the age of
maturity; 23% of the surveys adult respondents said the First Amendment goes too far in the rights it guarantees,
down from almost 50% in 2002 (shortly after the September 11, 2001, terrorist attacks).117 The extension of
Hazelwood to colleges could lead an even larger number of Americans, during some of their most formative years,
to become more accepting of official limitations on the content of their speech.118 That, in turn, could pave a
dangerous path toward vastly expanded federal and state speech regulation and a society in which free speech is
nothing more than a distant memory from an earlier time.

Limiting free speech causes self-censorship which is worse than


speech limitation DJS
Hentoff,Nat.[HistorianandFirstAmendmentscholar]"Speechcodesonthecampusand
problemsoffreespeech."Dissent38.4(1991):5058.
Jeff Shesol, a recent graduate of Brown and now a Rhodes scholar at Oxford, became nationally known while at
Brown because of his comic strip, Thatch, which, not too kindly, parodied P. C. students. At a forum on free speech
at Brown before he left, Shesol said he wished he could tell the new students at Brown to have no fear of speaking
freely. But he couldnt tell them that, he said, advising the new students to stay clear of talking critically about
affirmative action or abortion, among other things, in public. At that forum, Shesol told me, he said that those
members of the left who regard dissent from their views as racist and sexist should realize that they are discrediting
their goals. Theyre honorable goals, said Shesol, and I agree with them. Im against racism and sexism. But
these peoples tactics are obscuring the goals. And theyve resulted in Brown no longer being an open-minded
place. There were hisses from the audience.

Affirmative Action
AffirmativeActionhascomeoutoffreespeechprovisionsinUniversitiesDJS
Gutmann,Amy,andSigalBenPorath.[ProfessorofLiterature,Culture,and
InternationalEducationDivisionatTheUniversityofPennsylvania]Democratic
education.JohnWiley&Sons,Ltd,1987
One challenge faced by colleges and universities is how to provide adequate opportunities on a nondiscriminatory
basis for as many students who are willing and able to benefit from higher education when primary and secondary
schooling is inadequate. One controversy over the past several decades has focused on whether and, if so, what
kind of affirmative action is justified (Cohen, Nagel, & Scanlon 1977; Fullinwider 1980; Hellman 2008). The
strongest defense of affirmative action connects it to the widely accepted principle of nondiscrimination. Although no
one has a right to be admitted to a particular institution of higher education, everyone has a right not to be
discriminated against in admissions. Nondiscrimination as it applies to university admissions has two parts. First,
qualifications for admission must be relevant to the legitimate purposes of the university. Second, all applicants who
qualify should be given equal consideration for admissions.

Affirmative Action is put down by biased studentswhich takes


away from minorities educational opportunities DJS
Boler,Megan.[ProfessorintheDepartmentofSocialJusticeEducation,attheOntario
InstituteofStudiesinEducation(OISE)attheUniversityofToronto]"AllSpeechIs
NotFree:TheEthicsof"AffirmativeActionPedagogy"."Counterpoints240(2004):
313.
To begin with, different voice carry different weight; some voices are heard better than others; some voices are
foreclosed before even speaking. For example, it is one thing for my white male colleague to say As a heterosexual
white man I believe that persons of any sexual orientation should be equally protected under the law. It is entirely
other matter for someone to say, As a lesbian I believe that persons of any sexual orientation should be equally
protected under the law. Obviously, the lesbian is biased while the white male heterosexual is not, right? If the white
man says I feel victimized by affirmative action, the media and many of those in political power listen and validate
his experience, whereas if an African-American female says I feel victimized by capitalist patriarchy not only will
she not be quoted in the news and not validated, she will be blamed for her failure to succeed.

Hostile Environment
Hostile verbal environments are created through speech which is
protected by the First Amendment DJS
Balkin,JackM.[KnightProfessorofConstitutionalLawandtheFirstAmendment,Yale
LawSchool]"Freespeechandhostileenvironments."ColumbiaLawReview(1999):
22952320.
Although threats are not protected by the First Amendment, hostile environments do not always involve threats. A
hostile environment is made up of individual acts of discriminatory speech and other conduct by all the persons who
inhabit a workplace, including managers, employees, and even occasionally clients and customers. In hostile
environments, the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victims employment and create an abusive working environment . .
. .6 Some of this behavior may be directed at particular employees; other elements may be directed at no one in
particular but may help foster an abusive environment. Even if individual acts do not constitute a hostile environment
separately, they can be actionable when taken together. The test is whether the conduct, taken as a whole, would
lead to an environment that the employee reasonably perceives as abusive.

There are inconsistent statues on hostile environments between


work and universities DJS
Balkin,JackM.[KnightProfessorofConstitutionalLawandtheFirstAmendment,Yale
LawSchool]"Freespeechandhostileenvironments."ColumbiaLawReview(1999):
22952320.
Employers can be liable for maintaining a hostile work environment even if management did not personally engage
in any of the predicate acts. In Burlington Industries, Inc. v. Ellerth8 and Faragher v. City of Boca Raton, the
Supreme Court held that employers are liable for harassment by supervisory personnel, subject to a number of
affirmative defenses where the harassment did not result in a tangible employment action like firing or demotion.
The degree of vicarious liability for non-supervisory personnel (such as co-workers) is still contested, but currently
most courts hold an employer liable if the employer knew or should have known of the harassment and did not take
prompt corrective action.

SQUO allows prosecution for harmful speech even if unknown by

original party DJS


Balkin,JackM.[KnightProfessorofConstitutionalLawandtheFirstAmendment,Yale
LawSchool]"Freespeechandhostileenvironments."ColumbiaLawReview(1999):
22952320.
In fact, the one Supreme Court case that comes closest to recognizing the problem of collateral censorship seems
premised on this distinction. In Smith v. California, 22 a California statute made it a crime for bookstore owners to
stock books that were later judicially determined to be obscene, even if the owner did not know of the books
contents. The Supreme Court struck down the statute, arguing that if the bookseller is criminally liable without
knowledge of the contents . . . he will tend to restrict the books he sells to those he has inspected; and thus the
State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene
literature.23 Hence, [t]he booksellers self-censorship, compelled by the State, would be a censorship affecting the
whole public, hardly less virulent for being privately administered.24 What the Court calls self-censorship in Smith
is actually collateral censorship that arises from the different incentives of the bookseller and the book author.25 In
Smith the Court saw through (or, more correctly, did not even notice) the state action objection that a private party
was doing the censoring.2

A defense of racist speech lacks empathy. LWZ


JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
The only threats that the FIRE could citeand did cite loudly and vividly enough to provoke
more of themcame from the angry black students who posted their demands on Saloveys door
and confronted Nicholas Christakis in the courtyard. But should it really be so hard for Lukianoff
and Johnston to imagine that a young black woman undergraduate, seeing an upsurge of racist
violence and racist disenfranchisement tactics off campus, might cry out for the refuge, caring,
and resources to reckon with injustice that her colleges own marketing promised her?
Of course, she shouldnt be coddled but challenged to reconcile her overwrought perceptions
with complex realities. But if any of her critics could pause to imagine how he might feel as a
white student in a 93% non-white student body, on a campus most of whose custodial and dining
hall staff were white and where most street crimes near campus were committed by whites,
mightnt he assess a few black students histrionic student reactions with a little more nuance
and, frankly, a little more heart?
Instead, the calculated, viral distribution of the video of a confused and belligerent student made
it hard to avoid the impression that a sick system is eating its young. Like Captain Renault in the
movie Casablanca, the free speech campaign wants us to be shocked, shocked that some
students are as intemperate as the Republican presidential nominee and that some colleges
accommodate them.

Sexual Harassment
Verbal sexual harassment is Constitutional yet it is demeaning of
women DJS
Benson,DonnaJ.,andGreggE.Thomson.[DepartmentofSociology,Universityof
California]"Sexualharassmentonauniversitycampus:Theconfluenceof
authorityrelations,sexualinterestandgenderstratification."Socialproblems29.3
(1982):236251.
Our respondents estimated how frequently women students are sexually harassed at Berkeley and how serious a
problem it is for those who are harassed. A majority (59 percent) estimated that sexual harassment occurs
"occasionally," nine percent thought it occurred "frequently," and less than two percent said it "almost never"
happens. There was a high degree of consensus, therefore, that sexual harassment is not an isolated or rare
phenomenon and indeed is likely to be at least an occasional occurrence. Our respondents were divided on whether
the problem of harassment is "very serious" (37.9 percent), "moderately serious" (34.4 percent), and only "mildly
serious" or less (27.7 percent). As the accounts of actual sexual harassment indicate there is a considerable range
in the degree of difficulty which sexual harassment presents for individual women. Results for our entire sample,
however, suggest an overall perception that sexual harassment is a problem.

Protection of sexual harassment would only quite and suppress


women more DJS
Benson,DonnaJ.,andGreggE.Thomson.[DepartmentofSociology,Universityof
California]"Sexualharassmentonauniversitycampus:Theconfluenceof
authorityrelations,sexualinterestandgenderstratification."Socialproblems29.3
(1982):236251.
Only occasionally did the students in our sample directly complain to an instructor about his behavior; the risks may
have been too great. Thirty percent of the respondents did not even communicate their displeasure directly to the
instructor. This did not prove to be an effective way of managing the harassment, for in 13 of these 15 instances the
unwanted sexual attention persisted. Predictably, the 70 percent of the respondents who communicated in various
ways to the instructor that his sexual attention was not acceptable were more successful in stopping it. That
instructors did not always honor even fairly direct appeals to desist may be attributed to the combination of their
superior power and the belief (or perhaps rationalization) that a woman's "no" really means "yes." There is evidence
in our study that this may have been the case. Using Emerson's (1962) definition of power as "implicit in the other's
dependency," we examined the effects of three likely indicators of an instructor's power: (1) tenured status of the
professor; (2) student and professor in the same field; and (3) student aspirations for graduate school. When less
than all three of these conditions were present, sexual harassment ceased in 21 of 24 cases when the student
expressed her displeasure. However, when all three conditions were present, the harassment stopped in only five of
11 cases

Protected verbal sexual harassment limits and constrains women


at universities DJS
Benson,DonnaJ.,andGreggE.Thomson.[DepartmentofSociology,Universityof
California]"Sexualharassmentonauniversitycampus:Theconfluenceof
authorityrelations,sexualinterestandgenderstratification."Socialproblems29.3
(1982):236251.
The practice of sexual harassment both reflects and reinforces the devaluation of women's competence and helps
erode their commitment to competitive careers. Approached as the confluence of male formal authority and sexual
interest, sexual harassment should not be seen as an isolated or deviant phenomenon. Rather, attention to
harassment should be routine in any study of authority and gender in male-dominated institutions. For, as our
research suggests, sexual harassment may be endemic to the university, and women must bear the costs of the
latitude and ambiguity operating between a male-dominated system of formal authority and the sexual interests of
numerous individual male instructors.

Government Intervention
Government institutions can interfere into free speech DJS
Schauer,Frederick.[AssociateProfessorofLaw,MarshallWytheSchoolofLaw,College
ofWilliamandMary.A.B.1967;M.B.A.1968,Dartmouth;J.D.1972,Harvard.]
"SpeechandSpeechObscenityandObscenity:AnExerciseintheInterpretationof
ConstitutionalLanguage."Geo.LJ67(1978):899.
The first amendment does not say that Congress shall make no law abridging the freedom of action, the freedom of
contract, the freedom to sell heroin, or the freedom to fly a kite. The first amendment is 'not a total prohibition of
governmental action, nor can it sensibly be taken to apply the same burden of justification to all governmental
regulation. Implicit in the first amendment is the notion that there is on the one hand a general standard of
justification for governmental action, and on the other hand a higher standard when speech is the object of the
regulation. Considerations that would be sufficient to justify official action not constrained by a specific constitutional
prohibition may be insufficient to justify restrictions on speech. The first amendment protects speech even though it
may produce consequences that could be regulated constitutionally if those consequences were caused by conduct
other than speech.

Scapegoating
American crusaders are going after college students and free
speech to blame for the moral crisis in America. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
Whenever American civil society has been under great stress, if not, indeed, falling apart, selfappointed champions of the conventional wisdom and traditional values have ginned up public
paroxysms of alarm and rage at selected internal enemies to blame for the crisis.
In the 1690s, it was the witches, hysterical women and girls whom Puritans said had been taken
by Satan. In the 1840s, it was Catholic immigrants, who were said by a presidential candidate to
be besotted with rum, Romanism, and rebellion. In every decade before and since then, it has
been feral Negroes. In the 1920s, it was anarchists, Reds, and pushy Hebrews. In the 1950s, it
was American Communist spies for Stalin, the Satan of that time. In the 1960sm, it was hippies,
riotous blacks and traitorous opponents of the Vietnam War. Since 2001, it has been American
Muslims and, in 2003, it was critics of the Iraq War.
Now a new cohort of crusaders has found a new internal enemy: coddled, petulant college
students and some of their professors, who, were being told, are forcing university
administrators to silence and punish others who exercise freedoms of inquiry and expression in
ways that offend and hurt the complainers.

Focusing on the issue of free speech is an act of scapegoating. LWZ


JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
Let me say first that the more Ive looked at crusades of this kind, the more Ive been struck by
similarities between this one and the earlier paroxysms Ive mentioned:
Alwaysand no matter whether the orchestrators of public spasms against internal traitors
sound their alarms impulsively and demagogically or coolly and strategically, they get tons of
support from less-talented and fortunate people who are frightened, too, by a sense that their
society is unravelling. Witch-hunters, lynch-mobs, McCarthyite anti-Communists, white
supremacist militia members, and cheerleaders and apologists in the media emerge in great
numbers, out of nowhere, as the paroxysms approach their peaks.
Always, these spasms of fear and loathing grip the public precisely when the conventional
wisdom is unraveling on its own account, not because of any serious damage done to it by the
groups being targeted. The scapegoating works because it diverts an increasingly nervous
publics attention from deeper, broader dangers that most people fear to face head-ondangers

inherent in the blunders and deceits of the conventional wisdoms own champions, who most of
us have a stake in believing and following at least some of the time.
So the crusaders and their followers find an almost seductive, even thrilling relief and release in
assailing the more-vulnerable targets being presented to them. Some even find the prospect of
naming, sighting, and punishing the enemy so thrilling that they go right out and join the hunt
for prey that can be held up plausibly as proof of the disloyalty and danger: Sacco and Vanzetti
as anarchists, Julius and Ethel Rosenberg as Jewish Communist spies, Willie Horton and O.J.
Simpson as feral blacks, and so on. It works in the tawdry, predictable ways that leaders of these
rituals understand only too well.
Once a public paroxysm has been exposed to sunlight and has begun to subside, many people
begin to regard its chief witch-hunters, commie hunters, and prurient scourges of decadent youth
as more hysterical, sinister, and destructive of their own society than their scapegoated prey
ever were.
That new clarity can prompt regret and even penitence among the scapegoaters. One Sunday in
1697, seven years after the last execution of a witch in Salem, Massachusetts, Judge Samuel
Sewall, who'd presided over the trials, stood silently, head bowed, in Boston's Old South Meeting
House as the pastor, Samuel Willard, read aloud a note from him confessing his "guilt
contracted... at Salem" and desired "to take the blame and shame of it, asking... that God...
would powerfully defend him against all temptations for Sin for the future...."
Senator Joe McCarthy never asked forgiveness for brandishing his largely fictitious lists of
Communists in government and universities and for ruining so many lives and striking terror
into many others, but he fell apart under scrutiny. Defense Secretary Robert McNamara, harddriving architect of a war in Vietnam that began with the largely fabricated Gulf of Tonkin
incident and continued with fraudulent warnings of danger to the Free World, confessed tearfully
in The Fog of War that the war was undertaken with deceit and delusion. Republican political
operative Lee Atwater, whose television ads hyping feral blacks helped cost Democratic
presidential candidate Michael Dukakis the 1988 election, begged forgiveness from AfricanAmericans on his deathbed.

Targeting opponents of free speech mirrors authoritarian


tendencies. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
Johnstons observations so far are reasonable, or at least arguable. But soon they become the
conservative free speech campaigns oft-repeated talking points. As Johnstons ideology and
rhetoric got the best of him, he began to soar:
Teachers are now widely afraid of their own liberal students, because the slightest slipthe
absence of a trigger warning, for instancecan result in accusations of micro-aggressions,
racism, sexism, cisgenderism, whateverism, and that can result in getting tossed from tenure
track. The administrators who make these decisions are afraid of the students, too, because
fundamentally, the left has become a mob, and mobs are dangerous. These are the bullies of our
time.

Johnston wasnt soaring alone. His post went viral on conservative sites under headlines like
Regressive Liberalism, and when Lukianoff appeared on Washington, DCs Diane Rehm show, a
listener posted this comment:
Professors should tell these sensitive darlings to go pound sand if they don't like what they are
hearing. What do they expect when they graduate and enter the real world of work, and find out
their boss and co-workers don't give a darn about their 'feelings'? Or if they are discussing
politics or sports around the coffee pot? And God forbid these babies ever read, or engage
people on, this comment board. Microagressions galore! Their heads will explode!
This is the language of white men who are nostalgic for youths they dont clearly remember
they might wince to recall some of the things they did and said at 19. Some of them may be
feeling marginal in their own country and are determined to do something about itor to have
somebody else do something about it. In "The Authoritarian Personality Revisited," Peter F.
Gordon recalls Theodor Adornos and colleagues construction of a distinctive attitudinal
structure, called authoritarianism, which consisted of nine characteristics, including a
tendency to be on the lookout for, and to condemn, reject, and punish people who violate
conventional values.

The free speech campaign allows conservatives to forget the


horrors of the past. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
The conservative free-speech campaign has drawn many other prurient scourges of the decadent
young to prowl campuses seeking the thrill of sighting a specimen of the enemy who has become
so vivid, so haunting, in their imaginations.
Chasing the specter, they can forget about the Iraq war, the 2008 financial meltdown, the mass
killings, the road rage, the gladitorialization of sports, the degrading, ever-more intrusive
marketing, and Donald Trumps stampede through conventional herds of sacred political cows, all
of these horrors discrediting the neo-liberal paradigm within which the hunters have lived and
moved and had their beings. Finally, they can find a target.

Aff Counters

A2 Political Correctness
While the political correctness movement has good intentions, it is
important that students do not become walled off from those
who have different views. LMW.
Edwards,HaleySweetland(HaleySweetlandEdwardsisaformerstaffreporterforthe
SeattleTimes.HerfreelancereportinghasappearedintheLosAngelesTimes,the
NewYorkTimesonline,GlobalPost,ColumbiaJournalismReview,MentalFloss,
andNewYorkMagazine)Thefallacyoffreespeech.TimeDecember14,2015.
This wave of political correctness is born, essentially, of a noble idea. Minority students, facing bullying or
belittlement, argue for the need to protect themselves, to create a safe space. As one Yale undergraduate put
it, Its about creating a home here. But in creating that space, these advocates risk walling themselves off
from the unexpected, albeit sometimes ugly, reality of engaging in pitched debate with people with whom they
do not see eye to eye. They are rejecting the sometimes crushing but always formative experience of
discovering that you disagree, deeply and fundamentally, with a friend, and then deciding to stay friends
anyway. It is a crucial lesson for anyone living in a pluralistic democracy, especially one in which Donald
Trump, the human equivalent of a trigger warning, dominates the Republican field.

The term political correctness is a poor excuse for covering up


censorship. LWZ
GregLukianoff[thepresidentandCEOoftheFoundationforIndividualRightsin
Education(FIRE)],6302016,"Eightmisconceptionsaboutfreespeechon
campus,"AspenInstitute,https://www.aspeninstitute.org/aspenjournalof
ideas/eightmisconceptionsfreespeechcampus/
The problems on campus are all about political correctness.
Im not a big fan of the term political correctness. It means very different things depending on
where you stand on the political spectrum. While many FIRE cases deal with politically correct
censorship no matter how you define it, an awful lot of them dont. Take one of our biggest cases
in the past year: The president of Mount St. Marys University attempted to fire two professors for
criticizing his plan to use allegedly confidential student survey responses to weed out lowperforming students. That case, like many others we deal with, demonstrates the timeless urge
of those with power to punish those who criticize them.

A2 Racial Speech Harmful


Argument against racist speech brought down DJS
Lawrence,CharlesR.[ProfessorofLaw,StanfordLawSchool,StanfordUniversity.B.A.,
1965,HaverfordCollege;J.D.,1969,YaleLawSchool.]"Ifhehollerslethimgo:
Regulatingracistspeechoncampus."DukeLawJournal1990.3(1990):431483.
The argument most commonly advanced against the regulation of racist speech goes something like this: We
recognize that minority groups suffer pain and injury as the result of racist speech, but we must allow this
hatemongering for the benefit of society as a whole. Freedom of speech is the lifeblood of our democratic system."'
It is a freedom that enables us to persuade others to our point of view. Free speech is especially important for
minorities because often it is their only vehicle for rallying support for redress of their grievances. We cannot allow
the public regulation of racist invective and vilification because any prohibition precise enough to prevent racist
speech would catch in the same net forms of speech that are central to a democratic society.

Whenever we argue that racist epithets and vilification must be allowed, not because we would condone them
ourselves but because of the potential danger that precedent would pose for the speech of all dissenters,106 we are
balancing our concern for the free flow of ideas and the democratic process and our desire to furher equality. This
kind of categorical balance is struck whenever we frame any rule-even an absolute rule. It is important to be
conscious of the nature and extent of injury to both concerns when we engage in this kind of balancing. In this case,
we must place on one side of the balance the nature and extent of the injury caused by racism. We also must be
very careful, in weighing the potential harm to free speech, to consider whether the racist speech we propose to
regulate is advancing or retarding the values of the first amendment.

Despite a rise in hate speech, limiting free speech is the incorrect


response to dealing with it. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
In recent years, a rise in verbal abuse and violence directed at people of color, lesbians and gay
men, and other historically persecuted groups has plagued the United States. Among the
settings of these expressions of intolerance are college and university campuses, where bias
incidents have occurred sporadically since the mid-1980s. Outrage, indignation and demands for
change have greeted such incidents -- understandably, given the lack of racial and social
diversity among students, faculty and administrators on most campuses.
Many universities, under pressure to respond to the concerns of those who are the objects of
hate, have adopted codes or policies prohibiting speech that offends any group based on race,
gender, ethnicity, religion or sexual orientation.
That's the wrong response, well-meaning or not. The First Amendment to the United States
Constitution protects speech no matter how offensive its content. Speech codes adopted by
government-financed state colleges and universities amount to government censorship, in
violation of the Constitution. And the ACLU believes that all campuses should adhere to First
Amendment principles because academic freedom is a bedrock of education in a free society.

When one person is denied the right to free speech, all are the
denied the right to free speech. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
How much we value the right of free speech is put to its severest test when the speaker is
someone we disagree with most. Speech that deeply offends our morality or is hostile to our way
of life warrants the same constitutional protection as other speech because the right of free
speech is indivisible: When one of us is denied this right, all of us are denied. Since its founding
in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. That's the
constitutional mandate.

More speech is the correct response to offensive language. LWZ


AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech -not less -- is the best revenge. This is particularly true at universities, whose mission is to
facilitate learning through open debate and study, and to enlighten. Speech codes are not the
way to go on campuses, where all views are entitled to be heard, explored, supported or refuted.
Besides, when hate is out in the open, people can see the problem. Then they can organize

effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces
of intolerance.

Limiting free speech treats a symptom but ignores the cause. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
College administrators may find speech codes attractive as a quick fix, but as one critic put it:
"Verbal purity is not social change." Codes that punish bigoted speech treat only the symptom:
The problem itself is bigotry. The ACLU believes that instead of opting for gestures that only
appear to cure the disease, universities have to do the hard work of recruitment to increase
faculty and student diversity; counseling to raise awareness about bigotry and its history, and
changing curricula to institutionalize more inclusive approaches to all subject matter.

Silencing bigots sets a precedent to silence legitimate speech. LWZ


AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: I just can't understand why the ACLU defends free speech for racists, sexists, homophobes
and other bigots. Why tolerate the promotion of intolerance?
A: Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes
everyone's rights because the same laws or regulations used to silence bigots can be used to
silence you. Conversely, laws 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.
The indivisibility principle was also illustrated in the case of Neo-Nazis whose right to march in
Skokie, Illinois in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive
Director Aryeh Neier, whose relatives died in Hitler's concentration camps during World War II,
commented: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that
the freedoms to speak, publish or assemble any place in the United States are thereby
weakened."

Defending the rights of enemies of civil liberties means defending


First Amendment rights for everyone. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: I have the impression that the ACLU spends more time and money defending the rights of
bigots than supporting the victims of bigotry!!??
A: Not so. Only a handful of the several thousand cases litigated by the national ACLU and its
affiliates every year involves offensive speech. Most of the litigation, advocacy and public
education work we do preserves or advances the constitutional rights of ordinary people. But it's
important to understand that the fraction of our work that does involve people who've engaged
in bigoted and hurtful speech is very important:
Defending First Amendment rights for the enemies of civil liberties and civil rights means
defending it for you and me.

While there are a limited amount of exceptions to the First


Amendment, they are very rare. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: Aren't some kinds of communication not protected under the First Amendment, like "fighting
words?"
A: 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.

The First Amendment does not permit intrusions on private


property. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: What about nonverbal symbols, like swastikas and burning crosses -- are they constitutionally
protected?
A: Symbols of hate are constitutionally protected if they're worn or displayed before a general
audience in a public place -- say, in a march or at a rally in a public park. But the First
Amendment doesn't protect the use of nonverbal symbols to encroach upon, or desecrate,
private property, such as burning a cross on someone's lawn or spray-painting a swastika on the
wall of a synagogue or dorm.
In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as unconstitutional a city
ordinance that prohibited cross-burnings based on their symbolism, which the ordinance said
makes many people feel "anger, alarm or resentment." Instead of prosecuting the cross-burner
for the content of his act, the city government could have rightfully tried him under criminal
trespass and/or harassment laws.
The Supreme Court has ruled that symbolic expression, whether swastikas, burning crosses or,
for that matter, peace signs, is protected by the First Amendment because it's "closely akin to
'pure speech.'" That phrase comes from a landmark 1969 decision in which the Court held that
public school students could wear black armbands in school to protest the Vietnam War. And in
another landmark ruling, in 1989, the Court upheld the right of an individual to burn the
American flag in public as a symbolic expression of disagreement with government policies.

Speech codes very rarely work at combatting bias. LWZ


AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: Aren't speech codes on college campuses an effective way to combat bias against people of
color, women and gays?
A: Historically, defamation laws or codes have proven ineffective at best and counter-productive
at worst. For one thing, depending on how they're interpreted and enforced, they can actually
work against the interests of the people they were ostensibly created to protect. Why? Because
the ultimate power to decide what speech is offensive and to whom rests with the authorities -the government or a college administration -- not with those who are the alleged victims of hate
speech.
In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw racist
defamation. But throughout its existence, the Act has largely been used to persecute activists of
color, trade unionists and anti-nuclear protesters, while the racists -- often white members of
Parliament -- have gone unpunished.
Similarly, under a speech code in effect at the University of Michigan for 18 months, white
students in 20 cases charged black students with offensive speech. One of the cases resulted in
the punishment of a black student for using the term "white trash" in conversation with a white
student. The code was struck down as unconstitutional in 1989 and, to date, the ACLU has
brought successful legal challenges against speech codes at the Universities of Connecticut,
Michigan and Wisconsin.
These examples demonstrate that speech codes don't really serve the interests of persecuted
groups. The First Amendment does. As one African American educator observed: "I have always
felt as a minority person that we have to protect the rights of all because if we infringe on the
rights of any persons, we'll be next."

Speech codes drives biases underground which doesnt deter


bigotry. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: But don't speech codes send a strong message to campus bigots, telling them their views are
unacceptable?
A: Bigoted speech is symptomatic of a huge problem in our country; it is not the problem itself.
Everybody, when they come to college, brings with them the values, biases and assumptions
they learned while growing up in society, so it's unrealistic to think that punishing speech is
going to rid campuses of the attitudes that gave rise to the speech in the first place. Banning
bigoted speech won't end bigotry, even if it might chill some of the crudest expressions. The
mindset that produced the speech lives on and may even reassert itself in more virulent forms.

Speech codes, by simply deterring students from saying out loud what they will continue to think
in private, merely drive biases underground where they can't be addressed. In 1990, when Brown
University expelled a student for shouting racist epithets one night on the campus, the institution
accomplished nothing in the way of exposing the bankruptcy of racist ideas.

There is a distinction between speech and conduct and ensuring no


restrictions on free speech doesnt trade off with condemning
violence. LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: Does the ACLU make a distinction between speech and conduct?
A: Yes. The ACLU believes that hate speech stops being just speech and becomes conduct when
it targets a particular individual, and when it forms a pattern of behavior that interferes with a
student's ability to exercise his or her right to participate fully in the life of the university.
The ACLU isn't opposed to regulations that penalize acts of violence, harassment or intimidation,
and invasions of privacy. On the contrary, we believe that kind of conduct should be punished.
Furthermore, the ACLU recognizes that the mere presence of speech as one element in an act of
violence, harassment, intimidation or privacy invasion doesn't immunize that act from
punishment. For example, threatening, bias-inspired phone calls to a student's dorm room, or
white students shouting racist epithets at a woman of color as they follow her across campus -these are clearly punishable acts.
Several universities have initiated policies that both support free speech and counter
discriminatory conduct. Arizona State, for example, formed a "Campus Environment Team" that
acts as an education, information and referral service. The team of specially trained faculty,
students and administrators works to foster an environment in which discriminatory harassment
is less likely to occur, while also safeguarding academic freedom and freedom of speech.

Speech codes are an ineffective way of addressing hate, we should


instead on working to create meaningful institutional change.
LWZ
AmericanCivilLibertiesUnion,nodate,"HateSpeechonCampus,"theACLU,
https://www.aclu.org/other/hatespeechcampus
Q: Well, given that speech codes are a threat to the First Amendment, and given the importance
of equal opportunity in education, what type of campus policy on hate speech would the ACLU
support?
A: The ACLU believes that the best way to combat hate speech on campus is through an
educational approach that includes counter-speech, workshops on bigotry and its role in
American and world history, and real -- not superficial -- institutional change.
Universities are obligated to create an environment that fosters tolerance and mutual respect
among members of the campus community, an environment in which all students can exercise

their right to participate fully in campus life without being discriminated against. Campus
administrators on the highest level should, therefore,
speak out loudly and clearly against expressions of racist, sexist, homophobic and other bias,
and react promptly and firmly to acts of discriminatory harassment;
create forums and workshops to raise awareness and promote dialogue on issues of race, sex
and sexual orientation;
intensify their efforts to recruit members of racial minorities on student, faculty and
administrative levels;
and reform their institutions' curricula to reflect the diversity of peoples and cultures that have
contributed to human knowledge and society, in the United States and throughout the world.
ACLU Executive Director Ira Glasser stated, in a speech at the City College of New York: "There is
no clash between the constitutional right of free speech and equality. Both are crucial to society.
Universities ought to stop restricting speech and start teaching."

The idea that this is a race issue and not a free speech issue is not
borne out by the evidence. LWZ
ConorFriedersdorf[staffwriteratTheAtlantic,wherehefocusesonpoliticsandnational
affairs.HelivesinVenice,California,andisthefoundingeditorofTheBestof
Journalism,anewsletterdevotedtoexceptionalnonfiction],342016,"TheGlaring
EvidenceThatFreeSpeechIsThreatenedonCampus,"Atlantic,
http://www.theatlantic.com/politics/archive/2016/03/theglaringevidencethatfree
speechisthreatenedoncampus/471825/
Harpers ally in the debate, the Yale philosophy Professor Jason Stanley, didnt perform any
better. During portions the event, he claimed that folks on the other side, who say free speech is
under threat, arent really engaged in a debate about free speechhe said the real debate is
about racism and anti-racism and about leftism. In this telling, free speech is being invoked as a
cover, in service of less-sympathetic agendas.
That grossly distorted the positions taken by his opponents at the Intelligence Squared debate.
And the broader claim about free-speech defenderswhich is lamentably common in public
discourse on the subjectcan be refuted a dozen different ways. Heres one: Many college
newspapers are struggling with free-speech issues that have nothing to do with race or leftism,
as David Wheeler reported.
Or consider another narrow area of campus expression that is under threat: the formal speech,
delivered to a broad audience. Well restrict our threat survey to a single year.
In 2015 alone, Robin Steinberg was disinvited from Harvard Law School, the rapper Common was
disinvited from Kean University, and Suzanne Venker was disinvited from Williams College. Asra
Nomani addressed Duke University only after student attempts to cancel her speech were
overturned. UC Berkeley Chancellor Nicholas Dirks participated in an event on his own campus
that student protestors shut down. Speakers at USC needed police to intervene to continue an
event. Angela Davis was subject to a petition that attempted to prevent her from speaking at

Texas Tech. The rapper Big Sean faced a student effort to get him disinvited from Princeton. Bob
McCulloch faced a student effort to disinvite him from speaking at St. Louis University. William
Ayers was subject to an effort to disinvite him from Dickinson School of Law. Harold Koh faced a
student effort to oust him as a visiting professor at New York University Law School.
That list includes speakers from the right and the left. It involves several controversies that have
nothing to do with antiracism. How many examples are needed to persuade Stanley that there is
a problem? Because I only stopped listing them to avoid being tedious. Those examples are a
mere subset of 2015 efforts to censor speakers based on their viewpoints. There are still more
from 2014. Further roundups could be written about 2013, 2012, and beyond. Speech is
frequently threatened. Speeches are regularly disrupted. Some are cancelled every year.
To perceive no threat is to ignore reality.

Combating hate speech harms free speech. LWZ


DavidL.HudsonJr.[AdjunctProfessorofLaw,VanderbiltUniversity,FirstAmendment
expertandlawprofessorwhoservesasFirstAmendmentOmbudsmanforthe
NewseumInstitutesFirstAmendmentCenter],612016,"HowCampusPolicies
LimitFreeSpeech,"HuffingtonPost,http://www.huffingtonpost.com/the
conversationus/howcampuspolicieslimit_b_10249690.html
Combating hateful speech
First, lets look at speech codes on campuses. A speech code refers to a set of provisions or
regulations that limit certain types of offensive or harassing speech.
Colleges and universities usually dont call their regulations speech codes. Instead, they refer to
them as anti-harassment policies.
It was in the 1980s and 1990s that more than 300 colleges passed these policies to combat
hateful speech. Schools tried to address harassment of gays and lesbians, women and members
of other ethnic groups. The policies were further enforced when white students wore blackface
for sorority and fraternity parties. Many schools were trying to achieve more diversity in their
student bodies.
The intent was good. Many of these policies sought to prohibit speech or conduct that created an
intimidating or harassing environment on the basis of race, sex, religion, or other criteria.
However, the results were not good for the First Amendment and freedom of speech.
Policies at the University of Michigan and the University of Wisconsin were invalidated on First
Amendment free speech grounds.
At the University of Wisconsin, speech codes were adopted following racial incidents.
At the University of Wisconsin, for example, university officials adopted the speech code after
several racially insensitive displays at fraternities. For example, one fraternity held a slave
auction. A student newspaper and several others challenged the policy on the ground that the
policies infringed on academic freedom and stifled some legitimate speech. In UWM Post v. Board

of Regents of University of Wisconsin (1991), a federal district court struck down the policy,
writing:
The suppression of speech, even where the speechs content appears to have little value and
great costs, amounts to governmental thought control.
Similar problems occurred at Michigan, which had its share of disturbing racially charged
incidents. At Michigan, a student disc jockey allowed racist jokes to be aired. University officials
reacted with a speech code. The problem was that officials applied the policy to chill the speech
of students engaged in classroom discussion or academic research.
A federal district court judge invalidated the policy in Doe v. University of Michigan (1989),
writing:
While the Court is sympathetic to the Universitys obligation to ensure equal educational
opportunities for all of its students, such efforts must not be at the expense of free speech.
The problem was that these codes were not drafted with sufficient precision. Courts ruled that
these polices were either too broad or too vague.

Campus speech codes are too broad and suffer from vagueness
problems. LWZ
DavidL.HudsonJr.[AdjunctProfessorofLaw,VanderbiltUniversity,FirstAmendment
expertandlawprofessorwhoservesasFirstAmendmentOmbudsmanforthe
NewseumInstitutesFirstAmendmentCenter],612016,"HowCampusPolicies
LimitFreeSpeech,"HuffingtonPost,http://www.huffingtonpost.com/the
conversationus/howcampuspolicieslimit_b_10249690.html
Overbreadth and vagueness problems
A policy is too broad if it prohibits speech that ought to be protected in addition to speech that
can be prohibited. In legal terms, this is called overbreadth. For example, a policy that prohibits
offensive and annoying speech sweeps too broadly and prohibits lawful expression.
A policy is too vague if a person has to guess at its meaning. Vagueness is rooted in the notion
that it is fundamentally unfair to punish someone when they did not know that their speech
violated the policy.
For example, the University of Michigan had a policy that prohibited stigmatizing or victimizing
individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed,
national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.
In Doe v. University of Michigan, a federal district court judge ruled the policy too vague, writing:
Students of common understanding were necessarily forced to guess at whether a comment
about a controversial issue would later be found to be sanctionable under the Policy.
Controversies still abound over speech codes at colleges and universities. The Foundation for
Individual Rights in Education (FIRE) regularly challenges policies that it believes run afoul of the
First Amendment.

In its annual report, the group contends that nearly half of the speech codes at 440 colleges
infringe on First Amendment free speech rights. FIRE contends in its report that any speech
code in force at a public university is extremely vulnerable to a constitutional challenge.

Free speech zones dont advance free speech but rather limit it.
LWZ
DavidL.HudsonJr.[AdjunctProfessorofLaw,VanderbiltUniversity,FirstAmendment
expertandlawprofessorwhoservesasFirstAmendmentOmbudsmanforthe
NewseumInstitutesFirstAmendmentCenter],612016,"HowCampusPolicies
LimitFreeSpeech,"HuffingtonPost,http://www.huffingtonpost.com/the
conversationus/howcampuspolicieslimit_b_10249690.html
Restricting where students can have free speech
In addition, many colleges and universities have free speech zones. Under these policies, people
can speak at places of higher learning in only certain, specific locations or zones.
While there are remnants of these policies from the 1960s, they grew in number in the late
1990s and early 2000s as a way for administrators to deal with controversial expression.
These policies may have a seductive appeal for administrators, as they claim to advance the
cause of free speech. But, free speech zones often limit speech by relegating expression to just a
few locations. For example, some colleges began by having only two or three free speech zones
on campus.
The idea of zoning speech is not unique to colleges and universities. Government officials have
sought to diminish the impact of different types of expression by zoning adult-oriented
expression, antiabortion protestors and political demonstrators outside political conventions.
In a particularly egregious example, a student at Modesto Junior College in California named
Robert Van Tuinen was prohibited from handing out copies of the United States Constitution on
September 17, 2013 - the anniversary of the signing of the Constitution.
Van Tuinen was informed that he could get permission to distribute the Constitution if he
preregistered for time in the free speech zone. But later,
Van Tuinen was told by an administrator that he would have to wait, possibly until the next
month.
In the words of First Amendment expert Charles Haynes, the entire campus should be a free
speech zone. In other words, the default position of school administrators should be to allow
speech, not limit it.
Zoning speech is troubling, particularly when it reduces the overall amount of speech on campus.
And many free speech experts view the idea of a free speech zone as moronic and oxymoronic.
College or university campuses should be a place where free speech not only survives but
thrives.

Racist speech would have to demonstrate that it sufficiently


disrupts the operation of a university to meet the First
Amendment. LWZ
DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
Under current Supreme Court precedent, proponents of a ban on racist speech at public
universities would have to prove that the presence of racist speech might reasonably lead to
"material[ ] and substantial ] interfere[nce] with"193 university activities or "substantially
interfere with the opportunity of other students to obtain an education."' 194 In its decisions
regarding the freedom of expression at universities, the Supreme Court made two points clear.
First, refusal to suppress speech because of the offensiveness of its content does not interfere
with the university's smooth operation, and second, allowing such speech is a vital element of
the academic atmosphere.' 95 That atmosphere, according to the Court, fosters "scholarship"'
196 in the traditional sense, as well as the "exchange of ideas"' 197 and "debate."' 198 Matsuda
fails to make a compelling case that a ban on racist speech would not do substantial harm to the
atmosphere so vital to the goals of a university. She also fails to show how the presence of racist
speech sufficiently disrupts or interferes with the operation of the university to justify
suppression of first amendment rights. Judging by the Supreme Court's standards, the Doe
decision would not have changed even if Matsuda's arguments had been advanced.

The First Amendment is more important in universities because of


the special role universities play. LWZ
DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
A. Debate and the Exchange of Ideas
Like the Supreme Court, Matsuda recognizes that the first amendment has special meaning in
the context of the university, because it is a place of personal growth, learning, discourse, and
the exchange of ideas. 199 But unlike the Court, Matsuda believes that these special concerns
justify a narrower, 200 rather than a wider, scope of freedoms:
Universities are special places, charged with pedagogy, and dutybound to a constituency with
special vulnerabilities. Many of the new adults who come to live and study at the major
universities are away from home for the first time, and at a vulnerable stage of psychological
development. Students are particularly dependent on the university for community, for
intellectual development, and for self-definition. Official tolerance of racist speech in this setting
is more harmful than generalized tolerance in the community-at-large. 201
She thus sets the scene for a discussion of racist speech in universities by focusing on the victim
rather than on the general context of academia.
Viewing campus speech from this perspective, Matsuda takes a drastically different view from
the Supreme Court regarding the priority and nature of free discourse in the university setting:
[Racist speech] is harmful to student perpetrators in that it is a lesson in getting-away-with-it-all
that will have lifelong repercussions. It is harmful to targets, who perceive the university as
taking sides through inaction, and who are left to their own resources in coping with the damage
wrought. 20 2
Matsuda's analysis, however, fails to account for the unique nature of the university.

Racist speech at a university does not teach acceptance of racism


and ignores the importance of diversity on campuses. LWZ
DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
First, she claims that allowing racist speech teaches students that such behavior is acceptable in
the general community. 20 3 This view undervalues the importance of the university as a place
which brings students from different backgrounds together in an atmosphere that might lead
them to question the preconceptions with which they arrived. In fact, allowing free speech in
universities can teach students to reconsider their racist views before heading into the real
world. The university setting offers the victims of racist speech the chance to respond freely
without fear of substantial backlash from people with more power. In the workplace, a victim of
racist speech may have greater fears about responding to the racism of his boss, or even of a coworker. He may lose his job for responding. The university provides more pathways and chances
for a student to express exactly how that racism has made him feel, and to attempt to persuade
other students of his position. The politics of the workplace may prevent him from doing that. In
contrast, the campus setting may be the only place where a racist will hear the viewpoint of the
minority.24 It is far better to allow the racist to identify himself and to let the diverse community
of the university confront his racism, than to silence his view so that he leaves the university
with the same bigoted opinions as when he entered. Matsuda totally rejects the Court's
affirmation of the university as the "marketplace of ideas," in which the exchange of ideas-even
wrong ones-allows students-even racists-to discover the truth rather than having the government
tell it to them.20 5 Matsuda asserts that the victim of racist speech will perceive that the
university sides with the racist by allowing him to speak and by leaving the student to cope with
the damage.20 6 Matsuda should acknowledge that universities in fact do many things that
suggest they care about the welfare of the victim of racist speech.20 7 But even on a campus
wholly insensitive to the needs of minorities, a victimized student will be allowed full opportunity
to voice his anger and disgust with the perpetrator. Outside the university he may not have that
opportunity. In this sense, the university is a kind of training ground for the real world. To teach
the victimized student that racist views do not exist and do not need to be reckoned with is
unrealistic. 208

Even if minority students are a captive audience, the university


provides a unique space to refute such language. LWZ
DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
Matsuda argues that minority students are, to a certain extent, a captive audience, with few
places of retreat when racism appears on campus.20 9 Again, this ignores the fact that the
university setting offers outsiders a unique opportunity to stand their ground because all
avenues of attack are open to them. The atmosphere offers them the chance to refute and to
protest with no fear of official reprisal. A university cannot force outsiders to respond, but the
fact that it offers them every chance to do so is a more powerful statement of devotion to true
equality than a policy that suppresses the racist's speech. 210 To proscribe any kind of speech
based on its content is the first step towards destroying that atmosphere of freedom that allows
and encourages the victim to respond.

A ban on racist speech is actually exclusionary. LWZ


DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
B. Inclusion, Education, Development of Knowledge, and Ethics
Matsuda also argues that allowing racist speech harms a number of other fundamental university
goals: "Finally, it is a harm to the goals of inclusion, education, development of knowledge, and
ethics that universities exist and stand for. Lessons of cynicism and hate replace lessons in
critical thought and inquiry." 211
Certainly, the presence of one-sided racist speech harms the goal of inclusion. But the underlying
philosophy that compels the university to allow racist speech is one whose primary values are
tolerance and inclusion. While the immediate message the outsider student receives is one of
hate, the overall message is one in which he should take comfort: that he too has the
opportunity to think and to say whatever he wants with absolutely no fear of official
condemnation. The university's value of inclusion is truly all-encompassing. Matsuda's proposal,
although it means to protect racism's victims, is actually one of exclusion.

Allowing racist speech does not harm ethics. LWZ


DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
Contrary to Matsuda's assertion, allowing racist speech does not ultimately hinder the
development of ethics. Even if we argue that racist speech has no discernible content, we cannot
deny that it exists and that it will not disappear in the near future.21 2 When the Supreme Court
in Sweezy argued that free speech must reign at universities in order to allow students to "gain
new maturity and understanding," 213 it had difficult questions of ethics in mind. To ignore the
ethical problem of the existence of racism by suppressing its expression hides from the real
problem.

Even if cynicism arises because of racist speech, that is not


necessarily harmful and can promote critical thinking. LWZ
DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
Matsuda is worried that "cynicism and hate" will "replace lessons in critical thought and inquiry."2
14 It is not clear that the existence of the former should necessarily mean the disappearance of
the latter. Anyone with a brief acquaintance with the history of racism in America ought to be
very cynical about the possibility of change. Cynicism, however, sometimes gives rise to critical
thought and inquiry. While the whole community certainly would have been better off had it
never occurred, the incident at Stanford involving the defaced Beethoven poster certainly
resulted in a great deal of discourse regarding the nature of racism.21 5 More importantly,
however, as the Supreme Court suggested,21 6 it is an unhealthy environment indeed in which
students hesitate to discuss even very controversial subjects for fear of offending other students
and thus incurring the wrath of the university administration. This is precisely the kind of
devotion to orthodoxy,2 17 or insistence on allegedly "good taste," 218 from which the Supreme
Court insists universities should be free.

A ban on racist speech would still result in a chilling effect in


academic environments. LWZ
DavidRosenberg,RacistSpeechtheFirstAmendmentandPublicUniversities:Takinga
StandonNeutrality,76CornellL.Rev.549(1991)Availableat:
http://scholarship.law.cornell.edu/clr/vol76/iss2/6
Matsuda only briefly addresses the question of how her proposal might affect academic research.
219 Although she trusts the marketplace of ideas to prove racist theories wrong, it is not at all
dear that implementation of her suggestions would not do severe damage to academic pursuits.
Even under her narrowly drawn proposal, college students and professors may fear discussing
controversial issues about race in the classroom 220 or even through research and publication.
221 The Supreme Court feared this chilling effect when it described the dangers of a "pall of
orthodoxy." 222
Nor do Delgado's and Kretzmer's arguments support Matsuda's position. They make a convincing
case that suppression of racist speech would do only limited damage to the ideal of the pursuit of
truth in the community, but they do not overcome the Supreme Court's emphasis on free speech
in the academic community, where the ideals of pursuit of the truth223 and self-fulfillment are
most vital. Students and teachers must be free, as the Court says, to pursue all avenues of
thought, even when they appear to be-or are-wrong.

Hate speech is still protected and a rarity. LWZ


GregLukianoff[thepresidentandCEOoftheFoundationforIndividualRightsin
Education(FIRE)],6302016,"Eightmisconceptionsaboutfreespeechon
campus,"AspenInstitute,https://www.aspeninstitute.org/aspenjournalof
ideas/eightmisconceptionsfreespeechcampus/
But speech codes are only directed at banning hate speech.
Many students believe that hate speech is a category of speech that is unprotected under the
First Amendment. This is false. But even if you did try to define hate speech, as some European
countries have, virtually none of the cases Ive seen in 15 years involve speech that falls under
even these broad definitions. In fact, Ive seen a number of cases in which administrators
censored expression that was anti-racist. For example, administrators at the University of Iowa
censored a piece by Turkish artist Serhat Tanyolacar because it provocatively drew attention to
racism in both Americas past and present.

A2 Minority Harrassment
Speech restrictions are not an effective response against social
oppression. LMW.
Morissey,Anna(*J.D.Candidate,May2016,LoyolaUniversityChicagoSchoolofLaw
FreeSpeechInTheQuad:WhyFirstAmendmentOppressionIsNotThePathTo
RacialJusticeEducationLawAndPolicyFinalNote.LoyolaUniversityChicago
SchoolofLaw.2016
Perhaps then, it is no surprise the university free speech pendulum has swung in favor of speech restrictions
Millennials make up most of the university population and are present to apply greatest pressure on the
administration for change. In response to these campus pressures, many universities have adopted codes and
policies that prohibit offensive and outrageous speech.37 On the surface such measures may sound
appealing. However, who gets to decide what speech is offensive enough or outrageous enough? 38 More
vexing, how can a university that limits speech educate students from different backgrounds to effectively
handle differences in a marketplace of ideas?39 Therefore, how can First Amendment oppression really be
the right path to social justice?

Free speech is a key tool for minorities fighting against oppression.


LMW.
Morissey,Anna(*J.D.Candidate,May2016,LoyolaUniversityChicagoSchoolofLaw
FreeSpeechInTheQuad:WhyFirstAmendmentOppressionIsNotThePathTo
RacialJusticeEducationLawAndPolicyFinalNote.LoyolaUniversityChicago
SchoolofLaw.2016
These student activists across the country reflect First Amendment values and traditions to their core.41 For
that, they deserve applause. These activists have been organizing politically, speaking out, holding rallies, and
using the First Amendment to stand up, communicate and demand equal justice.42 But the end they seek runs
contrary to their purpose. Curtailing freedom of speech in any manner would place limits on those that
challenge the status quo a dangerous precedent for any free society. It is a mistake to suppress speech in
the name of equality. Free speech and association are tools for the minority, whoever they are at a given
moment.43 The First Amendment empowers individuals. It empowers individuals to express their views, to
dissent from majority policies, and to organize politically to advance their interests.44 Free speech protected
Martin Luther King Jr., Malcolm X, Susan B. Anthony, and many other civil rights activists.45 The last thing a
minority group should seek is the suppression of free expression.46

Free speech is crucial to discovering and changing oppressive


mindsets. LMW.

Morissey,Anna(*J.D.Candidate,May2016,LoyolaUniversityChicagoSchoolofLaw
FreeSpeechInTheQuad:WhyFirstAmendmentOppressionIsNotThePathTo
RacialJusticeEducationLawAndPolicyFinalNote.LoyolaUniversityChicago
SchoolofLaw.2016
The touchstone of the First Amendment, and any of free society, is freedom of expression no matter if the
government or others may disagree. It allows for individual freedom of mind, and places an important check on
those in power.51 First Amendment oppression would set a dangerous precedent and is not the answer to any
social intolerance. [F]reedom for the thought that we hate is often important to the discovery of truth, because
sometimes viewpoints change.52 Free speech and freedom of association are the tools that empower a
minority tools that must not be diminished.53 Ideas in vogue today may not be in vogue tomorrow. Therefore,
we must be eternally vigilant against
attempts to check the expression of opinions that we loathe.

A2 Microaggressions
A focus on microaggressions silences different viewpoints and
hurts academic freedom. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Focus on Microaggressions Is Misplaced: Amounts to Pernicious Policing of Speech
In June 2015, UCLA law professor Eugene Volokh argued in The Washington Post that the
University of Californias long list of microaggressions (including America is the land of
opportunity; Everyone can succeed in this society, if they work hard enough; and Affirmative
action is racist) wasnt merely about potential offense:
Its about suppressing particular viewpoints. And whats tenure for, if not to resist these attempts
to stop the expression of unpopular views? But Im afraid that many faculty members who arent
yet tenured, perhaps even quite a few tenured faculty members as well, will get the message
that certain viewpoints are best not expressed when youre working for UC, whether in the
classroom, in casual discussions, in scholarship, in op-eds, on blogs, or elsewhere. A serious
blow to academic freedom and to freedom of discourse more generally, courtesy of the
University of California administration.140

Excessive focus on microaggressions reinforces victimhood culture.


LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Social psychologist Jonathan Haidt wrote on his blog about a new sociology paper suggesting
that the concept of microaggressions grew out of a new victimhood culture, in which being
oppressed raises ones moral status.141 This leads to a tendency to exaggerate outrage at small
offenses, calling on a third party to intervene, while simultaneously reinforcing an identity
centered on an individuals status as damaged, weak, and aggrieved. Citing Bradley Campbell
and Jason Mannings article Microaggressions and Moral Cultures, 142 Haidt wrote:
The key idea is that the new moral culture of victimhood fosters moral dependence and an
atrophying of the ability to handle small interpersonal matters on ones own. At the same time
that it weakens individuals, it creates a society of constant and intense moral conflict as people
compete for status as victims or as defenders of victims.143

Attention on microaggressions exacerbates political divisions


between students. LWZ
PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Haidt and Greg Lukianoff argue that the unwarranted attention on microaggressions exacerbates
political divisions between students:
The recent collegiate trend of uncovering allegedly racist, sexist, classist, or otherwise
discriminatory microaggressions doesnt incidentally teach students to focus on small or
accidental slights. Its purpose is to get students to focus on them and then relabel the people
who have made such remarks as aggressors.144

Focusing on microaggressions causes conflict. LWZ


PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
In a similar vein, Conor Friedensdorf posted at The Atlantic, Why Critics of the
Microaggressions Framework Are Skeptical, arguing not only that it was inaccurate and
misleading to term minor unintentional slights as aggressions but also that such an intolerant
approach was likely to increase conflict:
Aggression is hostility or violent behavior or the forceful pursuit of ones interests. If
theres going to be a term for behavior that is burdensome partly because the often wellintentioned people who do it are blind to its wrongness and cumulative effect, baking
aggression into that term is hugely confusing. Whats more, the confusion seems likely to
needlessly increase the tension between the person experiencing the grievance and the person
who is ostensibly responsible.145
He added that the term itself was confrontational and therefore potentially counterproductive:
When a person is engaged in objectionable behavior, publicly shaming rather than engaging
them causes them to become defensive or hostile in turn.146

Microaggression focus chills speech. LWZ


PENAmerica,10172016,TheFreedomtoWriteAndCampusForAllDiversity,
Inclusion,andFreedomofSpeechatU.S.Universities,PENAmerica,
https://pen.org/sites/default/files/PEN_campus_report_final_online_2.pdf
Critics of the concept of microaggressions worry that a focus on these slights can lead to
intrusive and chilling policing of campus speech and that it encourages victims of slights to focus

unduly on even the most minor harms. They also believe that this focus unproductively sows
conflict between people who may not be remotely at odds but accidentally stumble into
language that causes offense, then triggering a stronger-than-warranted reaction born of a
commitment not to tolerate microaggressions

Neg Counters

A2 Political Change
Universities should not be political institutions. LMW.
Thorne,Ashley.(AshleyThorneisexecutivedirectoroftheNationalAssociationof
Scholars,8West38thStreet,Suite503,NewYork,NY)SocialMedia,Civility,and
FreeExpression2015.SpringerScience+BusinessMediaNewYork.
Politically, incivility can come from both the left and the right. The role that properly falls to the university is to
model a better way. However, one reason we have the problem of incivility in campus settings today is the rise
of the idea that the university exists primarily for transforming society rather than primarily as a place of
learning. This activist focus leads to politicization of the academy, which leads to wars over ideology. There are
constructive ways of weighing competing ideologies, but universities tend to take sides and preclude an open
airing of different perspectives. Theres much more to be said about this, but for now I will simply state that we
must remember that the main goal of higher education is to learn about the world, not to change it.

A2 General Solvency
Free speech movements actually hurt free speech. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
If Lukianoffs video was meant to correct the politically correct, it had the contradictory effect of
chilling the freedoms of expression that the FIRE and Scott Johnston claim to defend even in
highly offensive speech. (You do realize that you don't have the right not to be offended, right?,
Johnston had said to the Native American students. And Erika Christakis, in her open letter on
Halloween costumes, had asked, Is there no room anymore for a child or young person to be a
little bit obnoxious a little bit inappropriate or provocative or, yes, offensive? American
universities were once a safe space not only for maturation but also for a certain regressive, or
even transgressive, experience; increasingly, it seems, they have become places of censure and
prohibition.)

Violations of free speech arent widespread and some forms of


speech harm a universitys mission. LWZ
JimSleeper[alecturerinpoliticalscienceatYale],942016,"WhattheCampus'Free
Speech'CrusadeWon'tSay,"Alternet,http://www.alternet.org/education/what
campusfreespeechcrusadewontsay0
No, universities havent become places of censure and prohibition, at least not before Lukianoff
took out his video-cam and used his own rights to shut down someone elses, a good example of
what the conservative free speech campaign is doing. That video and the angry Native
American students were enough to make Johnston, like alumni of other colleges that have had
similar demonstrations, some led by black and Latino students, decide to stop funding what they
see as coddled undergraduates and weak-kneed administrators.
This is not your daddys liberalism, Johnston told the New York Times. I dont think anything
has damaged Yales brand quite like that video of the black student shouting at the professor.
A college has more than a brand. It has a mission to teach the young the arts and disciplines of
open inquiry and democratic deliberation. That mission is sometimes compromised by immature
students who disrupt civil discourse and violate other students rights, even while demonstrating
against racism or sexual assault. Some professors do peddle propaganda and impose
orthodoxies instead of stimulating free inquiry. Some deans do guide social life with rules that
infantilize and tribunals that short-circuit due process. The U.S. Department of Justices Office of
Civil Rights has bureaucratized such guidance in ways, beyond my scope here, that only make
it easier to deny due process in order to advance feminist strictures. Political correctness can be
dangerous if it dominates students politically and intellectually formative experiences.
But I, too, was at Yale last fall, teaching a political science seminar on Journalism, Liberalism,
and Democracy, and although I saw that video, little else that I saw would have damaged
Yales brand or liberal educations mission had it not been so badly, willfully misrepresented.

Hundreds of white students had their first intimate conversations about race with classmates of
color. A thousand, of all colors, joined a vibrant campus March of Resilience. Another thousand
convened in the chapel, where I saw them hear classmates and professors speak from their
deepest humanity, without malevolence or duplicity. As the author of Liberal Racism and a
journalist who lived among and wrote about angry black New Yorkers for years, I know gratuitous
racial theater when I see it. I didnt see much of it at Yale.
I was disturbed by the discrepancies between what was actually happening on campus and how
it was being portrayed in the media, said one of my students, a young white man of classically
establishment bearing. It wasnt exactly a protest. It was a moment of education. The entire
campus was confronting collective emotions and challenges in a way Id never experienced. It
was beautiful. And it needed to be emotionalso it was."
Yet what many Americans know about such moments of education is what theyre being shown
by a campaign thats peddling antipathy and an ideology that condemns earnest, even if
immature, students and protective administrators but that touts free markets as better
guarantors of individual rights. Are they?

Cases

Aff Case

Introduction:
One mans vulgarity is another mans lyric" because Justice Harlans words ring so true in this
round today I affirm the resolution, Resolved: Public colleges and universities ought not restrict
any Constitutionally protected free speech.
Definitions:
Free Speech -- Schauer,

Frederick.[ Associate Professor of Law, Marshall-Wythe School of Law, College of William and Mary. A.B. 1967; M.B.A. 1968,

Dartmouth; J.D. 1972, Harvard.] "Speech and Speech--Obscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language." Geo. LJ 67

(1978):

899.

words of the Constitution, such as "speech," can and should


be interpreted as ordinary language, having substantially the same meaning in
constitutional text as they do in everyday discourse. Those adopting such a view criticize the Supreme Court's obscenity
Alluringly uncomplicated is the proposition that the

decisions for ignoring the obvious. If pornography is a form of speech, according to the dictionary or according to ordinary usage, pornography must be a form of speech for first
amendment purposes. If, however, ordinary usage supplies us with the definition of the word "speech," then what excludes from first amendment coverage the many other

Perjury is speech, conspiracy is speech, oral or written


fraud is speech, verbally describing military secrets to an enemy is speech, and
calling a bookie to place a bet is speech. Yet none of these activities has been held to
be within the scope of the first amendment. It is especially important here to distinguish between activities that are within the
activities that plainly are speech as the word is ordinarily used?

scope of the first amendment and those that are not, and at the same time to distinguish between coverage and protection.

Observation:
The resolution only applies to public institutions which are part of the federal government, so by
extension universities and colleges are an arm of the federal government. Because they are part
of the government the burden becomes much greater for limitation of speech.
Value: Rawlsian Justice
In order to give all people, the fair access to rights that they are do my value will be Rawlsian
Justice. Rawls defines his interpretation on Justice as fairness. Allowing all people the equal
opportunity to have their rights granted without limitations creates a society that is better off.
Value Criterion: Market Place of Ideas
The way in which justice can be achieved is with my value criterion of market place of ideas. The
marker place of ideas is loosely based on the concepts of a free market economy. Just like a
market when anyone can say what they want self-policing happens and the harmful hate speech
slowly gets eliminate The best way to think about this value criterion is with a bushel of apples
with most being fresh and delicious, and a few being rotten. If the apples were to go out for sale
eventually all the good ones would be sold and the few bad ones would not and then disappear.
This ultimately achieves justice because the ideals of fairness are happening because everyone
is being treated in an appropriate manor and their rights are being better respected.

Contention One:
Contention 1: Students are harmed by limitations on speech
Protection of students and their rights is one of the main goals on campuses across the country,
however,

Confines on speech in universities limits academic discourse and research


Byrne, J. Peter.[ Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399.

The rules for punishing racist insults that universities have recently adopted reflect prevailing views about the constitutional authority of universities in this area.

Current

statutes seek to punish a narrow range of utterances,

cautioned, no doubt, by the recent federal district court decision in


Doe v. University of Michigan.62 In 1988 the University of Michigan adopted a Policy on Discrimination and Discriminatory Harassment of Students in the University Environment,
which prohibited "behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin,

An
interpretive guide, prepared by the University's Office of Affirmative Action, listed
activities and statements apparently violative of the policy, including, "A male
student makes remarks in class like 'Women just aren't as good in this field as men.'
"64 The policy was challenged in Doe as vague and overbroad by a psychology graduate student who was concerned that he might be sanctioned for classroom discussion of
"controversial theories positing biologically-based differences between sexes and races.65 The court held the policy to be unconstitutionally
overbroad and vague; it suggested, however, that a more narrowly drawn regulation might be upheld.
ancestry, age, marital status, handicap or Vietnam-era veteran status," and poses some kind of "threat" or "interfer[es]" with a person's university endeavors. 63

This policy of limiting and defining what isnt allowed takes away from the learning environment
from which people are in. Furthermore,
Truth and education is a universities goal and censorship harms this
Byrne, J. Peter. [Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399.
The university's first commitment is to truth. As argued above, the university does not manifest this commitment to truth by
licensing all expression. Rather, truth is equated with knowledge, precepts, or hypotheses tentatively established through painstaking, expert, and disinterested inquiry.95

Students come to the university to learn disciplines of thought, whether in the sciences or the humanities,
that are more likely to solve problems or contribute to constructive discourse than
the more subjective, flabbier, and less coherent thinking to which they were limited
upon matriculation. The commitment to forms of thought and expression conducive to
truth and coherence lies at the core of academic values; without this commitment, the
university is a scam. Racial insults have no status among discourse committed to truth. They do not attempt to establish, improve, or criticize any
proposition or object of inquiry. They do not even have enough truth value to be false, to represent a discarded alternative idea. Racial insults communicate only scorn or hatred
irrationally based on immutable characteristics of the target. Their goal can only be to diminish the victim or to accentuate the belonging of the speaker to a group outside of the
despised circle. They may relieve emotional tension within the speaker, but only at the greater cost of increasing tension within and among the audience.

If students are not allowed to have total and free discourse, then the learning process is going to
be stunted. This open market needs to happen to challenge ideas, create new ideas, and weed
out whatever untruths may lie in the school. The government does not have the right to discern
what is and what isnt truthful because it is a violation of our right to due process which means
that justice cannot be achieved then.

Contention Two:
Contention 2: Free discourse is key to democracy
Democracy is one of the key pillars on which the United States is situated upon, and allowing the
free flow of ideas allows for a culture of democracy to be fostered.
Free discourse in schools leads to a more democratic government
Byrne, J. Peter.[ Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399
These comments suggest a strength of the Court's broad view of first amendment protection for offensive speech that frontal assaults have failed to touch: because

democratic government is incompetent to proscribe certain forms of speech, the


Court will deny it the power to do so even in cases in which a substantial majority
agrees that a form of speech is worthless and harmful. Thus, even if one were happy
with a democratic determination to punish racist insults because "[r]acial supremacy
is one of the ideas we have ... considered and rejected," 6 one might worry about
which other ideas the controlling majority might consider to have been so decisively
rejected that utterance of them could lead to prosecution. Our political life stands upon very few moral principles that offer guidance in making these choices. 61 We
expect most political decisions to reflect the preferences of shifting majorities in
legislatures, and we employ constitutional rules as an imperfect mechanism of
preserving liberties that embody consensual moral principles. Before a constitutional
liberty is released to permit regulation of a perceived social wrong, a convincing
argument that fighting the wrong advances a moral principle rather than a political
agenda is required. Our reluctance to limit constitutional liberties reflects our doubts about the capacity of legislatures to identify and apply moral principles.
Proposing legal protection for some but not all victims of racial insults exacerbates anxiety about whether such protection rests on a political agenda. Simply arguing that civic
virtue ought to play a larger role in the decision making of representative assemblies will not make it so without profound changes in our political institutions and culture. The
distrust of democratic capacity to censor speech must be overcome before general restrictions on racist insults can be found constitutional

The reason that we have this promotion of ideas by a general process is so that the ideals of
democracy and justice can permeate into all of society. These institutions are mechanisms for
changing social ills and making the society intern more democratic.
University policy shapes democratic ideals of the United States
Byrne, J. Peter. [Associate Professor, Georgetown University Law Center.] "Racial Insults and Free
Speech Within the University." Geo. LJ 79 (1990): 399.
For the university to bar offensive ideas would give precedence to a commitment
beyond those to truth and to learning, a commitment to racial justice as a primary
goal. Pursuit of such a social goal may appropriately be embraced under the
university's third commitment-to democracy. Indeed, most universities openly pursue equal opportunity and diversity as
important goals. This democratic commitment encompasses the many important ways that the
university directly serves society, such as by training students for useful employments or by conducting applied research to solve
contemporary technical or economic problems. Among their contributions to democracy, universities have aided the integration of, first, European immigrants and, now, nonEuropean Americans into a shared culture and economy by facilitating their admission to the university and altering the curriculum or social context to meet their special needs. 1
0 5 Given that most universities are already committed to democracy, what is objectionable about banning racially offensive speech to further that goal?

This commitment to a more democratic nation has its roots deeply in the education of
Americans. Historical precedent has shown that these places are some of the first places
minorities and women can get more of their rights which intern leads to a social change. When
all people are treated equal both democracy and justice can be upheld.

Contention Three:
Contention 3: Free speech key to solving racism
The issue of racism is a growing problem in our modern era, however limiting the speech of
students at universities only does more harm than would an acceptance of all speech.
Acceptance of all speech is key for a diverse and more inclusive society
Gutmann, Amy, and Sigal BenPorath. [Professor of Literature, Culture, and International
Education Division at The University of Pennsylvania] Democratic education. John Wiley & Sons,
Ltd, 1987

an essential aim of democratic education worry that it goes too far in


the direction of requiring that schools subject all beliefs and values even those religious beliefs and
values, for example, that are not essential to a well-functioning democracy to critical scrutiny. While encountering a variety of views
and values in schools is important for the development of tolerance and as a way to
learn to appreciate the diverse society in which the students live, educating students
Critics of making autonomy

to evaluate even their parents (along with other citizens) religious values (and other values that are not essential to democratic justice) can create an unnecessary rift between
the worldviews of parents and students (Tomasi 2001). Focusing democratic education on autonomy in the broadest sense of the term subjecting everything to critical scrutiny
on the basis of ones independent set of values is particularly problematic when students come from cultures that do not value personal autonomy (Galston 1991; Ben-Porath

democratic education can both respect a wide range of cultures and


teach mutual respect and toleration by focusing civic education on key democratic
values and principles rather than by teaching autonomy as a comprehensive moral
philosophy.
2010a). Critics point out that

This culture of acceptance and tolerance can only be created if the market for differing opinions
and language can be created. If we cute the flow of these ideas from the market then we can
never expect that the society will ever become more inclusive others.
Open discourse allows for a more rapid inclusion and development of the self
Gutmann, Amy, and Sigal BenPorath. [Professor of Literature, Culture, and International
Education Division at The University of Pennsylvania] Democratic education. John Wiley & Sons,
Ltd, 1987
Modern democracies are multicultural in the broadest sense of the term: just as their
histories, if accurately rendered, combine the contributions of many cultures, so too
do their citizens identify with many cultures (Gutmann 2003). Yet public schools in
many democracies have taught their domestic history and civics curricula as if their
society were monocultural. Many history curricula downplay, some even disparage,
cultural identities other than the dominant one within a society. Many public schools in the USA, for example,
once assigned American history texts that referred to Native Americans as savages, neglected the Spanish exploration of the New World, and were almost entirely devoid of
voices of African Americans and women (Stille 1998: 1520). School days commonly included Protestant prayers, readings from the King James version of the Bible, and Christian
hymns. All children, whatever their religion, were expected to participate. When they were exempted, upon their (or their parents) request, they were made to feel like outsiders
and dissenters to a publicly endorsed religion.

Having a culture of promotion of all ethnicities and cultural beliefs will eliminate the racism that
exists in our country. This give all people their due to fairness and equality which lead to justice.
Overall, allowing for open speech and discourse education can be furthered, democracy can be
promoted, and racism can be eliminated, and all of these lead to justice

Neg Case

Introduction:
Because not all speech is good speech, I negate the resolution, Resolved: Public colleges and
universities ought not restrict any Constitutionally protected free speech.
I value morality because of the term ought in the resolution. Regardless of what specific moral
theory one subscribes to, there is common agreement that racism is fundamentally immoral.
TJ Donahue writes in 2008: T. J. Donahue [Department of Political Science The Johns Hopkins
University] WHAT MAKES RACISM WRONG? Working Paper Version of 4 August 2008
http://ssrn.com/abstract=939000
One of the precepts of Western morality, and increasingly, of all moral codes, is that racism is
wrong. To commit a racist act, to support racist institutions, to express a racist attitude, or even
to have racist attitudes are, most of the worlds moral codes now agree, wrong. This means that
when one commits such acts or expresses or has these attitudes, one has violated a moral
obligation.
But what makes racism wrong? In virtue of what is being racist, or acting as a racist, a dereliction
of moral duty? Three answers loom large in the philosophical literature. The first, due to J. L. A.
Garcia, holds that racism is wrong because it manifests the vices of malevolence and injustice
(Garcia 1 The second answer, due to Lawrence Blum, holds that what makes racism wrong is that
it (a) violates moral norms of equal respect and (b) is integrally tied to race-based systems of
oppression.2 The third answer, inspired by the work of John Rawls, holds that racism is made by
wrong by its violation of such principles of justice as the principle of equal liberty or the
difference principle.3 Against these three views, this paper argues that what, above all, makes
racism wrong is simply and solely that it entails omitting treating every person as a bearer of
equal dignity. Such omissions are, as I shall try to show, wrong. I shall call omitting treating every
person as a bearer of equal dignity the chief wrong-maker of racism, since it is what, as I
argue, is most responsible for racisms being as wrong as it is.
Thus, my value criterion, or standard, is minimizing racism. Prefer my value criterion for two
additional reasons.
First, while there are conflicting accounts of what it means to be moral, we all have a
fundamental intuition that racism is wrong. In a world of moral uncertainty, we should default to
our core moral assumptions and base our actions off of those fundamental assumptions.
Second, racism undermines the basis of all moral theories. All moral theories assume some
degree of moral agency and equality, but racism undermines both agency and equality, make
racism the most important issue to discuss in terms of morality, especially in society where
racism is still prevalent today.

Contention One:
My thesis and sole contention is that public colleges and universities ought to restrict
Constitutionally protected racist speech.
Professor Hernndez-Truyol writes in 2014: Berta E. Hernndez-Truyol [Levin Mabie & Levin
Professor of Law, University of Florida Levin College of Law.], Globally SpeakingHonoring the
Victims' Stories: Matsuda's Human Rights Praxis, 112 Mich. L. Rev. First Impressions 99 (2014).
Available at: http://repository.law.umich.edu/mlr_fi/vol112/iss1/12
Matsudas proposal seems uncontroversial and even desirable (especially in light of the
historical realities of racial minorities disempowerment) because it simply asks that the
victims story be heard and be relevant to any analysis. Her measured approach requires
three elements to make speech actionable: the message must be (1) of racial inferiority; (2)
made against a historically oppressed group; and (3) persecutory, hateful, and
degrading. Because these elements are focused and limited, Matsudas approach
should address concerns about slippery slopes or opened floodgates. Indeed, these
elements serve to tie hate speech to the existing doctrinal requirements of threats,
incitement, or fighting words.
Nonetheless, the Supreme Courts rulings establish that hate speech is protected
speech, despite the documented harms it causes. Instead of an Equality track, the courts
have opted for a Libertarian track that requires all ideas to be in the marketplace in order for
everyone to have a voice. It is not for the government to identify who has good or bad ideas;
indeed, under the First Amendment there is no such thing as a false idea.12
Hate speech empirically is racist and causes immense harms to those it affects. It should be
recognized as similar in effect to fighting words which are not constitutionally protected.
Professor Hernndez-Truyol continues: Berta E. Hernndez-Truyol [Levin Mabie & Levin
Professor of Law, University of Florida Levin College of Law.], Globally SpeakingHonoring the
Victims' Stories: Matsuda's Human Rights Praxis, 112 Mich. L. Rev. First Impressions 99 (2014).
Available at: http://repository.law.umich.edu/mlr_fi/vol112/iss1/12
Whether any of these narratives, all of which can be categorized as hate speech stories, find
protection under free speech principles depends on where the speech occurs. The Supreme Court
of the United States has interpreted the First Amendments Free Speech Clause very broadly.
Such an interpretive move effectively deploys the idea of American exceptionalism. In the
United States, therefore, hate speech is not per se actionable unless it fits into an
established category of unprotected speech.8
Most of the rest of the world has a different view. Other countries are not so concerned
about setting limits to expression that consist of advocacy of national, racial or religious hatred
that constitute[] incitement to discrimination, hostility or violence.9 The world community
recognizes that hateful statements can be harmful. Indeed, there is a conscious effort
in Europe to reconcile free speech with other rights, especially in light of the culturally
diverse societies that comprise the region.
In Victims Story, Matsuda details the real harms that real people suffer because of hate speech
racial slurs and epithets or other harsh language that has no purpose other than to
injure and marginalize other people or groups.10 By depriving citizens of the peace,
stability, and security to which they are entitled in their daily lives, the United States
approach to hate speech becomes a psychic tax imposed on those least able to pay:

vulnerable, disempowered minorities. There are documented psychological symptoms


and emotional consequences to hateful slurs.11
There is literally no value in hate speech it exists solely to degrade and hurt other people. A
desire to reduce racism and produce equality justifies a limitation of constitutionally protected
hate speech. Additionally, hate speech undermines a marketplace of ideas and chills speech.
Professor Hernndez-Truyol concludes: Berta E. Hernndez-Truyol [Levin Mabie & Levin
Professor of Law, University of Florida Levin College of Law.], Globally SpeakingHonoring the
Victims' Stories: Matsuda's Human Rights Praxis, 112 Mich. L. Rev. First Impressions 99 (2014).
Available at: http://repository.law.umich.edu/mlr_fi/vol112/iss1/12
Targets of hate speech often must take action to avoid the slurs. Because of the real or
perceived power differentials between the hate speaker and the target, targets can
rarely just talk back, as the First Amendment marketplace of ideas assumes. The
real consequences of hate speech vary and may range from forcing someone to leave her
job or educational institution to prompting her to move to a different city. It may even chill
speech. The United States exceptional approach to speech not only enables the uttering
of hurtful words and actually inhibits speech but also supports the effects they cause.
The desire to eliminate discrimination justifies regulating hate speech. In turn,
eradicating discrimination promotes the constitutional value of equality. Furthering
equality and combatting the harms of racial epithets including their offensiveness and
their lack of social, political, or cultural valueprovide legitimate grounds for regulating
such speech. Members of the target groups have the right not to be exposed to such
words. Rather than recognizing the value of their stories, the underlying policies of the First
Amendment entrench the status quo, including the power differential between the powerful
and the subordinated and marginalized. These policies foster inequality and implicitly
support the harms that come from such speech.
Thus, because hate speech runs contrary to the very ideas of equality that undergird the United
States and services no legitimate purpose, I negate the resolution.