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

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BFI 16 LD: College Free Speech

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

Author: Kyle Cheesewright

Resolved: Public colleges and universities in the United States ought not restrict any constitutionally protected speech. 1

Topic Analysis 3

Additional Readings 4

Affirmative Case 5

Aff Cards 13

Negative Case 22

Neg Cards 27

Topic Analysis 3

Additional Readings 4

Affirmative Case 5

Aff Cards 12

Negative Case 20

Neg Cards 24

Topic Analysis

This resolution is certainly an interesting one, and it is a topic that has had people writing and arguing about it extensively since at least the early-90’s. While in the early-90’s the discussion was not constrained to Public colleges and universities—scholars with objectives established by a certain style of feminism, and critical race theory engaged in questioning the assumed value of “Freedom of Speech” in US society, arguing that Free Speech was only free for some folks. These early discussions tended to revolve around questions of regulating pornography or hate speech—and they still shape much of the contours of this conversation today.

More recently, this discussion has emerged on college and university campuses, often related to questions about the relationships between different racial, gender, and folks with different sexual orientations on campus. Unique to the college environment, the concept of “Academic Freedom” gets added into the mix, and strong opinions are bound to emerge. Notions like “safe spaces,” “trigger warnings,” “hate speech,” and protest all work their way into these conversations. It is quite viable to pull pieces of strategy from each of these different aspects of the conversation, but as a starting point, this file primarily concerns itself with the historical conversation regarding hate speech, and the ability of language to wound.

The Affirmative in this file is based largely in the work of Judith Butler. Arguing that hate speech is important to confront, Butler’s argument is that the best confrontation with hate speech is one based in counter-readings and dissent from traditional interpretations. In short, Butler argues that only through allowing speech can we transform it. Considering that Judith Butler is often credited as one of the early authors working in “Queer Theory” it makes a lot of sense that she would approach injurious language from a more playful perspective. If you are interested in pursuing this strategy, I would highly recommend reading the entirety of Excitable Speech, and working to generate impacts based on the problematic nature of governmentality.

The negative strategy in this file is based largely on the need to regulate hate speech, because of the differential effects that it has on those who are targeted. This strategy relies largely on the notion that those who have been historically marginalized are differently effected by the invocation of hate speech, making it an unfair playing field. There are some cards which could be used to cut a type of balancing negative, which advocates for remedies to free speech, through democratization of speech rather than its regulation.

As a topic, I think that this is actually a pretty interesting topic—but it does appear to be highly biased for the affirmative. The Affirmative benefits from the ability to argue in favor of Free Speech, which conceptually at least, benefits from wide support in America. Additionally, the Affirmative gets to argue that public schools should be required to follow the constitution.

I think that in order to secure some ground, the Negative is going to have to discuss what it means for something to be “constitutionally protected.” Historically: time, place, and manner restrictions have been allowed in regulating free speech, which limits on content have not been. The clearest application of these concerns is probably around questions of civility and inclusion—and those are probably a smart place for debaters to focus their attention when preparing to debate the negative.

Additional Readings

Butler, J. (1997). Excitable speech: A politics of the performative. New York: Routledge.

Cross, K. (2014) “Jack Halberstam’s flying circus: On postmodernism and the scapegoating of trans women.” Feministing. Online.

Fish, S. (1994) There’s no such thing as free speech . . . and it’s a good thing, too. New York, NY: Oxford University Press.

Halberstam, J. (2014). “You are triggering me! The neo-liberal rhetoric of harm, danger and trauma.” Bully Bloggers. Online.

Lee, O. (2001) “Weapons for the weak? Democratizing the force of words in an uncivil society.” Law & Social Inquiry 26.4 (Autumn, 2001): 847-890. JSTOR.)

MacKinnon, C. A. (1996) Only words. Boston, MA: Harvard University Press.

Matsuda, M.J., C.R. Lawrence III, R. Delgado, K. W. Crenshaw. (1993). Words that wound: Critical race theory, Assaultive Speech, and the first amendment. 49821st Ed. Boulder, CO: Westview Press.

Sorial, S. (2010) “Free Speech, Autonomy, and the Marketplace of Ideas.” Journal of Value Inquiry 44: 167-183.

Affirmative Case

I offer a value of agency, which Judith Butler connects to speech and explained in 1997:

Butler, 1997 (Judith [American philosopher and gender theorist; Full-time Unicorn] Excitable Speech. New York, NY: Routledge, 1997. Print)

The main concerns of Excitable Speech are both rhetorical and political. In the law, "excitable" utterances are those made under duress, usually confessions that cannot be used in court because they do not reflect the balanced mental state of the utterer. My presumption is that speech is always in some ways out of our control. In a formulation that anticipates Felman's reading of the speech act, Austin writes that "actions in general (not all) are liable, for example, to be done under duress, or by accident, or owing to this or that variety of mistake, say, or otherwise unintentionally.:' (21) Austin then takes the occasion to delink the speech act from the subject in some instances: "in many such cases we are certainly unwilling to say of some such act simply that it was done or that he did if'(21) Untethering the speech act from the sovereign subject founds an alternative notion of agency and, ultimately, of responsibility, one that more fully acknowledges the way in which the subject is constituted in language, how what it creates is also what it derives from elsewhere. Whereas some critics mistake the critique of sovereignty for the demolition of agency, I propose that agency begins where sovereignty wanes. The one who acts (who is not the same as the sovereign subject) acts precisely to the extent that he or she is constituted as an actor and, hence, operating within a linguistic field of enabling constraints from the outset.

The criterion that I propose is the destruction of the sovereign subject. Again, in 1997, Judith Butler explained the connection between speech and the sovereign subject:

Butler, 1997 (Judith [American philosopher and gender theorist; Full-time Unicorn] Excitable Speech. New York, NY: Routledge, 1997. Print)

The sovereign conceit emerges in hate speech discourse in several ways. The one who speaks hate speech is imagined to wield sovereign power, to do what he or she says when it is said. Similarly, the "speech" of the state often takes a sovereign form, whereby the speaking of declarations are, often literally, "acts" of law. The effort to locate such illocutionary instances of speech, however, posed difficulties for Austin, and led him to devise a series of provisos and new distinctions to take account of the complexity of the performative terrain. Not all utterances that have the form of the performative, whether illocutionary or perlocutionary, actually work. This insight has important consequences for the consideration of the putative efficacy of hate speech. Rhetorically, the assertion that some speech not only communicates hate, but constitutes an injurious act, presumes not only that language acts, but that it acts upon its addressee in an injurious way. These are, however, two importantly different claims, and not all speech acts are the kinds of acts that act upon another with such force. For instance, I may well utter a speech act, indeed, one that is illocutionary in Austin's sense, when I say, "I condemn you;' but if l am not in a position to have my words considered as binding, then I may well have uttered a speech act, but the act is, in Austin's sense, unhappy or infelicitous: you escape unscathed. Thus, many such speech acts are "conduct" in a narrow sense, but not all of them have the power to produce the effects or initiate a set of consequences; indeed, many of them are quite comic in this regard, and one might read Austin's tract, How to Do Things with Words, as an amusing catalogue of such failed performatives.


I begin my defense of the resolution by noting that free Speech is being attacked on College campuses.

Friedersdorf, 2016 (Conor [Staff Writer at The Atlantic] “The Glaring Evidence that Free Speech is Threatened on Campus.” The Atlantic. 4 March 2016. Online.

Or consider another narrow area of campus expression that is under threat: the formal speech, delivered to a broad audience. We’ll 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.

In order to support the resolution, I begin by observing that while language has the possibility to wound, the most effective counter to languages ability to hurt is to recognize that language doesn’t do what it says. Exploiting the gap between language and reality opens the possibility to subvert injurious language. Restricting this language only reifies the effects of language.

Butler, 1997 (Judith [American philosopher and gender theorist; Full-time Unicorn] Excitable Speech. New York, NY: Routledge, 1997. Print)

Thus a statement may be made that, on the basis of a grammatical analysis alone, appears to be no threat. But the threat emerges precisely through the act that the body performs in the speaking the act. Or the threat emerges as the apparent effect of a performative act only to be rendered harmless through the bodily demeanor of the act {any theory of acting knows this). The threat prefigures or, indeed, promises a bodily act, and yet is already a bodily act, thus· establishing in its very gesture the contours of the act to come. The act of threat and the threatened act are, of course, distinct, but they are related as a chiasmus. Although not identical, they are both bodily acts: the first act, the threat, only makes sense in terms of the act that it prefigures. The threat begins a temporal horizon within which the organizing aim is the act that is threatened; the threat begins the action by which the fulfillment of the threatened act might be achieved. And yet, a threat can be derailed, defused, can fail to furnish the act that it threatens. The threat states the impending certitude of another, forthcoming act, but the statement itself cannot produce that forthcoming act as one of its necessary effects. This failure to deliver on the threat does not call into question the status of the speech act as a threat-it merely questions its efficacy. The self-conceit that empowers the threat, however, is that the speech act that is the threat will fully materialize that act threatened by the speech. Such speech is, however, vulnerable to failure, and it is that vulnerability that must be exploited to counter the threat. For the threat to work, it requires certain kinds of circumstances, and it requires a venue of power by which its performative effects might be materialized. The teleology of action conjured by the threat is disruptible by various kinds of infelicities. Nevertheless, the fantasy of sovereign action that structures the threat is that a certain kind of saying is at once the performance of the act referred to in that saying; this would be an illocutionary performative, in Austin's view, one that immediately does what it says. The threat may well solicit a response, however, that it never anticipated, losing its own sovereign sense of expectation in the face of a resistance it advertently helped to produce. Instead of obliterating the possibility of response, paralyzing the addressee with fear, the threat may well be countered by a different kind of performative act, one that exploits the redoubled action of the threat (what is intentionally and non-intentionally performed in any speaking), to turn one part of that speaking against the other, confounding the performative power of the threat.

The possibility to subvert language that hurts us is crucial, because the vulnerability created by language occurs precisely because there is no language to describe it. Working to discover linguistic agency is key, because language is at the root of both the survival and the death of the body.

Butler, 1997 (Judith [American philosopher and gender theorist; Full-time Unicorn] Excitable Speech. New York, NY: Routledge, 1997. Print)

"Linguistic survival" implies that a certain kind of surviving takes place in language. Indeed, the discourse on hate speech continually makes such references. To claim that language injures or, to cite the phrase used by Richard Delgado and Mari Matsuda, that "words wound" is to combine linguistic and physical vocabularies. The use of a term such as "wound" suggests that language can act in ways that parallel the infliction of physical pain and injury. Charles R. Lawrence III refers to racist speech as a "verbal assault;' underscoring that the effect of racial invective is "like receiving a slap in the face. The injury is instantaneous':(68) Some forms of racial invective also "produce physical symptoms that temporarily disable the victim ... :· (68) These formulations suggest that linguistic injury acts like physical injury, but the use of the simile suggests that this is, after all, a comparison of unlike things. Consider, though, that the comparison might just as well imply that the two can be compared only metaphorically. Indeed, it appears that there is no language specific to the problem of linguistic injury, which is, as it were, forced to draw its vocabulary from physical injury. In this sense, it appears that the metaphorical connection between physical and linguistic vulnerability is essential to the description of linguistic vulnerability itself. On the one hand, that there appears to be no description that is "proper" to linguistic injury makes it more difficult to identify the specificity of linguistic vulnerability over and against physical vulnerability. On the other hand, that physical metaphors seize upon nearly every occasion to describe linguistic injury suggests that this somatic dimension may be important to the understanding of linguistic pain. Certain words or certain forms of address not only operate as threats to one's physical well-being, but there is a strong sense in which the body is alternately sustained and threatened through modes of address. Language sustains the body not by bringing it into being or feeding it in a literal way; rather, it is by being interpellated within the terms of language that a certain social existence of the body first becomes possible. To understand this, one must imagine an impossible scene, that of a body that has not yet been given social definition, a body that is, strictly speaking, not accessible to us, that nevertheless becomes accessible on the occasion of an address, a call, an interpellation that does not "discover" this body, but constitutes it fundamentally. We may think that to be addressed one must first be recognized, but here the Althusserian reversal of Hegel seems appropriate: the address constitutes a being within the possible circuit of recognition and, accordingly, outside of it, in abjection. We may think that the situation is more ordinary: certain already constituted bodily subjects happen to be called this or that. But why do the names that the subject is called appear to instill the fear of death and the question of whether or not one will survive? Why should a merely linguistic address produce such a response of fear? Is it not, in part, because the contemporary address recalls and reenacts the formative ones that gave and give existence? Thus, to be addressed is not merely to be recognized for what one already is, but to have the very term conferred by which the recognition of existence becomes possible. One comes to "exist" by virtue of this fundamental dependency on the address of the Other. One "exists" not only by virtue of being recognized, but, in a prior sense, by being recognizable. The terms that facilitate recognition are themselves conventional, the effects and instruments of a social ritual that decide, often through exclusion and violence, the linguistic conditions of survivable subjects. If language can sustain the body, it can also threaten its existence. Thus, the question of the specific ways that language threatens violence seems bound up with the primary dependency that any speaking being has by virtue of the interpellative or constitutive address of the Other. In The Body in Pain, Elaine Scarry makes the point that the threat of violence is a threat to language, its world-making and sensemaking possibility. Her formulation tends to set violence and language in opposition, as the inverse of each other. What if language has within it its own possibilities for violence and for world-shattering? For Scarry, the body is not only anterior to language, but she argues persuasively that the body's pain is inexpressible in language, that pain shatters language, and that language can counter pain even as it cannot capture it. She shows that the morally imperative endeavor to represent the body in pain is confounded (but not rendered impossible) by the unrepresentability of the pain that it seeks to represent. One of the injurious consequences of torture, in her view, is that the one tortured loses the ability to document in language the event of torture; thus, one of the effects of torture is to efface its own witness. Scarry also shows how certain discursive forms, such as interrogation, aid and abet the process of torture. Here, however, language assists violence, but appears not to wield its own violence. This raises the following question: if certain kinds of violence disable language, how do we account for the specific kind of injury that language itself performs?

Free Speech on College Campuses is under attack from a variety of different sources, and from every side of the political spectrum.

Friedersdorf, 2016 (Conor [Staff Writer at The Atlantic] “The Glaring Evidence that Free Speech is Threatened on Campus.” The Atlantic. 4 March 2016. Online.

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 sanctions––both 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 can’t 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 them––especially 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.

Even with the best intentions, violations of Free Speech waterfall, and everyone is harmed.

Friedersdorf, 2015 (Conor [Staff Writer at The Atlantic] “The Lessons of Bygone Free-Speech Fights.” The Atlantic. 10 December 2015. Online.

20 years ago, opponents of speech codes warned that those with the impulse to suppress any speech were putting us on a slippery slope; that core, protected speech would inevitably be punished or chilled. Today’s campus-speech battles suggest they were correct. In October at UCLA, a fraternity hosted what they called a Kanye Western theme party. Attendees dressed up like Kanye West and his celebrity wife. Despite early press reports about some students wearing black face, students did not, in fact, incorporate black face into their costumes. Nevertheless, the Afrikan Student Union declared that the party was cultural appropriation. So far, there’s no First Amendment issue. The Afrikan Student Union had every right to protest something it found offensive. But in this case, UCLA administrators punished the fraternity that hosted the party by temporarily suspending it. And that ought to alarm you even if you think that the frat shouldn’t have thrown the party, because UCLA is a public institution. It must adhere to the First Amendment. And dressing up in virtually any costume, no matter how offensive, is protected speech. Imagine you were having a Halloween party at your house. Wouldn’t you find it outrageous if the city government came and ticketed you or one of your friends for wearing the wrong costume? Now, if asked beforehand, I would have urged the frat to choose a different theme. We should be sensitive to one another. But a Kanye Western party is far afield from the edge cases that define the outer boundaries of the First Amendment. If UCLA’s speech police get their way, they would set a precedent that significantly narrowed a core right. That would do the most harm to the people who rely most on the First Amendment: the powerless, the marginalized, and the unpopular; activists for minority causes, contrarian intellectuals, and dissident journalists. And when the unintended consequences of today’s activism harm the least powerful, most marginalized individuals of the future, UCLA graduates and administrators are highly unlikely to be among them. They can afford to be shortsighted. That said, even at UCLA right now, there are efforts to limit the free-speech rights of activists who criticize Israel while advocating for the human rights of Palestinians. Standing up for robust First Amendment rights on campus is as important as ever. But most student activism that concerns speech is now aimed at limiting it.

Finally, responsible approaches to language recognize that language and violence are both intertwined, and what we do with that connection is what gives our lives meaning.

Butler, 1997 (Judith [American philosopher and gender theorist; Full-time Unicorn] Excitable Speech. New York, NY: Routledge, 1997. Print)

Toni Morrison refers specifically to "the violence of representation" in the 1993 Nobel Lecture in Literature. "Oppressive language:' she writes, "does more than represent violence; it is violence: (16) Morrison offers a parable in which language itself is figured as a "living thing;' where this figure is not false or unreal, but indicates something true about language. In the parable, young children play a cruel joke and ask a blind woman to guess whether the bird that is in their hands is living or dead. The blind woman responds by refusing and displacing the question: "I don't know ... but what I do know is that it is in your hands. It is in your hands:' (11) Morrison then elects to read the woman in the parable as a practiced writer, and the bird, as language, and she conjectures on how this practiced woman writer thinks of language: "she thinks of language partly as a system, partly as a living thing over which one has control, but mostly as agency-as an act with consequences. So the question that the children put to her, 'Is it living or dead?' is not unreal, because she thinks of language as susceptible to death, erasure ... · (13) Here Morrison writes in a. conjectural way what the practiced woman writer conjectures, a speculation both in and about language and its conjectural possibilities. Remaining within a figural frame, Morrison announces the "reality" of that frame from within its own terms. The woman thinks of language as living: Morrison gives us the performance of this act of substitution, this simile by which language is figured as life. The "life" of language is thus exemplified by this very enactment of simile. But what sort of enactment is this? Language is thought of "mostly as agency-an act with consequences;' an extended doing, a performance with effects. This is something short of a definition. Language is, after all, "thought of," that is, posited or constituted as "agencY.' Yet it is as agency that it is thought; a figural substitution makes the thinking of the agency of language possible. Because this very formulation is offered in language, the "agency" of language is not only the theme of the formulation, but its very action. This positing as well as this figuring appear to exemplify the agency at issue. We might be tempted to think that attributing agency to language is not quite right, that only subjects do things with language, and that agency has its origins in the subject. But is the agency of language the same as the agency of the subject? Is there a way to distinguish between the two? Morrison not only offers agency as a figure for language, but language as a figure for agency, one whose "reality" is incontestible. She writes: "We die. That may be the meaning of life. But we do language. That may be the measure of our lives~' (22) She does not state: "language is agencY,' for that kind of assertion would deprive language of the agency she means to convey. In refusing to answer the children's cruel question, the blind woman, according to Morrison, "shifts attention away from the assertions of power to the instrument through which that power is exercised~ (12) Similarly, Morrison refuses to offer dogmatic assertions on what language is, for that would obscure how the "instrument" of that assertion participates in that very being of language; the irreducibility of any assertion to its instrument is precisely what establishes language as self-divided. The failure of language to rid itself of its own instrumentality or, indeed, rhetoricity, is precisely the inability of language to annul itself in the telling of a tale, in the reference to what exists or in the volatile scenes of interlocution. Significantly, for Morrison, "agency" is not the same as "control"; neither is it a function of the systematicity of language. It seems that we cannot first give an account of human agency and then specify the kind of agency that humans have in language. "We do language. That may be the measure of our lives:'

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