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Harvard Westlake-Nayar-Aff-Damus-Round2.docx
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Harvard Westlake-Nayar-Aff-Damus-Round3.docx
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Harvard Westlake-Nayar-Aff-Glenbrooks-Round2.docx
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Harvard Westlake-Nayar-Aff-Golden Desert-Round2.docx
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Harvard Westlake-Nayar-Aff-Newark Invitational-Round1.docx
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Harvard Westlake-Nayar-Aff-Newark Round Robin-Round3.docx
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Harvard Westlake-Nayar-Aff-USC-Round1.docx
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Caselist.CitesClass[7]
Cites
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1 -Part 1 is Framing
2 -The starting point of government deliberation has to be the individual and how they relate to the social world around them. Rules only gain their force if they are open to public criticism. This means we need a procedural democracy that transcends the exact content of any moral rule. . Adorno:
3 -Adorno, Theodor. “Education after Auschwitz,” Critical Model
4 -
5 -Government action is about the process of deliberation not finding an exact rule to follow in every circumstance. Generation of values requires the ability to speak out. . Singer 84
6 -Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.
7 -
8 -The law can either be used to forward the claims of the powerless or to perpetuate those of the powerful. We embrace a system of politics that allows for the powerless to speak out. Balkin 08
9 -Balkin, Jack M. "Critical legal theory today." (2008).
10 -
11 -Part 2 – The Police State
12 -Qualified immunity reflects a culture of policing that justifies terrorizing black neighborhoods and lets police know they can get away with anything. Carter ‘15
13 -Tom Carter – WSWS Legal Correspondent, a lawyer (https://www.wsws.org/en/articles/2014/02/24/cart-f24.html). “US Supreme Court Expands Immunity for Killer Cops.” Center for Research on Globalization. November 12, 2015. http://www.globalresearch.ca/us-supreme-court-expands-immunity-for-killer-cops/5488366 JJN
14 -
15 -Qualified immunity makes questions of civil rights irrelevant. It shuts down democratic debates about which rights we should value and prevents forms of activism that fight for legal recognition. Hassel ‘99
16 -Diana Hassel - Associate Professor, Roger Williams University School of Law. B.A. 1979, Mount Holyoke College; J.D. 1985, Rutgers, the State University of New JerseyNewark. “Living a Lie: The Cost of Qualified Immunity.” Missouri Law Review. Winter 1999. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402andcontext=mlr JJN
17 -
18 -Part 3 - The plan
19 -Plan Text: In all cases in which a police officer is a named defendant against an accusation of violating the 4th amendment by excessive force, the SCOTUS will strike down the "clearly established" and "reasonable officer" clauses in Harlow. Wright ‘15
20 -Sam Wright is a public interest lawyer who has spent his career exclusively in nonprofits and government. “Want to Fight Police Misconduct? Reform Qualified Immunity.” Above the Law. November 3, 2015. http://abovethelaw.com/2015/11/want-to-fight-police-misconduct-reform-qualified-immunity/?rf=1 JJN
21 -
22 -Excessive force is the worst manifestation of this form of structural violence – 4th amendment cases get shut down before they even have a chance. Jeffries ‘13
23 -Jeffries Jr, John C - David and Mary Harrison Distinguished Professor of Law, the University of Virginia. "The Liability Rule for Constitutional Torts." Virginia Law Review (2013): 207-270.
24 -
25 -The AFF changes police behavior – lawsuits are used by departments to create reform and individuals know their behavior will be watched – they don’t’ even need to win the lawsuits. Schwartz 10
26 -Schwartz, Joanna. "What Police Learn from Lawsuits." Cardozo Law Review, 2010. http://law.stanford.edu/wp-content/uploads/sites/default/files/event/265497/media/slspublic/What_Police_Learn_From_Lawsuits.pdf. SGK
27 -
28 -The AFF changes culture – it is a form of social condemnation that validates the claims of the survivor. Armacost 98
29 -Armacost 98 Barbara Armacost, Vanderbilt Law Review, April, 1998, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=90852, “Qualified Immunity: Ignorance Excused,” WP
30 -
31 -The plan fosters cooperation, which operates as a key check against police departments. De Stefan ‘16
32 -Lindsey de Stefan - J.D. Candidate, 2017, Seton Hall University School of Law; B.A., Ramapo College of New Jersey. ““No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct.” The date is claimed to be 2017… but that’s impossible. So it says it has had 360 downloads since July 26, 2016 which is when the article is most likely to have been assumed to be released on the website. Stetan Hall Law. http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1861andcontext=student_scholarship JJN
EntryDate
... ... @@ -1,1 +1,0 @@
1 -2016-11-08 23:23:52.0
Judge
... ... @@ -1,1 +1,0 @@
1 -McHugh, Tim
Opponent
... ... @@ -1,1 +1,0 @@
1 -Harker AC
ParentRound
... ... @@ -1,1 +1,0 @@
1 -11
Round
... ... @@ -1,1 +1,0 @@
1 -2
Team
... ... @@ -1,1 +1,0 @@
1 -Harvard Westlake Nayar Aff
Title
... ... @@ -1,1 +1,0 @@
1 -NOV-DEC - Damus R2 - Police State AC V1
Tournament
... ... @@ -1,1 +1,0 @@
1 -Damus
Caselist.CitesClass[8]
Cites
... ... @@ -1,74 +1,0 @@
1 -Framing
2 -The standard should be preserving the rule of law
3 -
4 -First, the rule of law animates democracy- its crucial to rights protections and reducing all forms of violence
5 -Rummel 91 – Professor of Political Science @ University of Hawaii R.J. Rummel, THE RULE OF LAW:TOWARDS ELIMINATING WAR AND DEMOCIDE, S peech given to the ABA National Security Conference on "The Rule of Law in United States Foreign Policy and the New World Order. Washington, D.C., October 10-11, 1991. pg. http://www.hawaii.edu/powerkills/ABA.SPEECH.HTM
6 -
7 -Second, Rule of law is a gateway to every disad impact
8 -RHYNE ‘58 – FORMER PRESIDENT AMERICAN BAR ASSOCIATION
9 -LAW DAY SPEECH, VOICE OF AMERICA, 1958 http://www.abanet.org/publiced/lawday/rhyne58.html)
10 -
11 -Third, the rule of law requires the protection of individual civil rights
12 -Novak ‘05 Michael, former U.S. ambassador to the U.N. Human Rights Commission and to the Bern Round of the Helsinki Talks, holds the George F. Jewett Chair in Religion and Public Policy at the American Enterprise Institute, “Global Liberty,” National Review, 1/20, p. Lexis
13 -
14 -Harms
15 -
16 -SCOTUS ruled in Saucier V Katz that a duplicative “double reasonableness” standard must be applied in 4th amendment cases. This has disrupted the balance of immunity jurisprudence tilting the playing field overwhelmingly in favor of police gutting section 1983 and civil rights protections broadly
17 -Brown 03
18 -(Peter A., JD - Qualified Immunity Illogically Applies to Excessive Force Claims Suffolk University Law Review 2003 36 Suffolk U. L. Rev. 607 )
19 -
20 -The 4th amendment already provides broad protection for police conduct-Saucier goes too far in protecting police at the expense of civil rights through duplicative legal sleight of hand
21 -Shapiro et al, 01
22 -(JD - Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663 Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924 Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41 Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522 (U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M. KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )
23 -
24 -Double reasonableness warp the rule of law in favor of police defendants
25 -Hassel 09
26 -(Diana,Law @ Roger Williams, JD Rutgers, Excessive Reasonableness The Trustees of Indiana University Indiana Law Review 2009 Indiana Law Review 43 Ind. L. Rev. 117)
27 -
28 -Duplicative immunity is a threat to freedom- it eviscerates the 4th amendment by allowing illogical exceptions
29 -Shapiro et al, 01
30 -(JD - Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663 Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924 Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41 Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522 (U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M. KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )
31 -
32 -1983 is crucial to the rule of law- it’s the lynchpin of rights protections
33 -Pittman 12
34 -(JD candidate - Nathan R., UNINTENTIONAL LEVELS OF FORCE IN § 1983 EXCESSIVE FORCE CLAIMS William and Mary Law Review William and Mary Law Review May, 2012 William and Mary Law Review 53 Wm. and Mary L. Rev. 2107)
35 -
36 -Successful civil rights challenges to police misconduct are crucial to challenging cultural militarism. Carter ‘15
37 -Tom Carter – WSWS Legal Correspondent, a lawyer (https://www.wsws.org/en/articles/2014/02/24/cart-f24.html). “US Supreme Court Expands Immunity for Killer Cops.” Center for Research on Globalization. November 12, 2015. http://www.globalresearch.ca/us-supreme-court-expands-immunity-for-killer-cops/5488366 JJN
38 -
39 -Independent of civil rights protections an incoherent, government biased QI system undercuts law enforcement and the rule of law broadly
40 -Pittman 12
41 -(JD candidate - Nathan R., UNINTENTIONAL LEVELS OF FORCE IN § 1983 EXCESSIVE FORCE CLAIMS William and Mary Law Review William and Mary Law Review May, 2012 William and Mary Law Review 53 Wm. and Mary L. Rev. 2107)
42 -
43 -Solvency
44 -
45 -The Supreme Court ought to limit qualified immunity in excessive force cases
46 -
47 -The plan strikes a goldilocks middle ground by eliminating massive pro police bias in existing immunity jurisprudence
48 -Stoelting 89
49 -(David P, JD and co-chair of the International Criminal Law Committee, QUALIFIED IMMUNITY FOR LAW ENFORCEMENT OFFICIALS IN SECTION 1983 EXCESSIVE FORCE CASES 1989 University of Cincinnati Law Review. University of Cincinnati 1989 58 U. Cin. L. Rev. 243)
50 -
51 -The aff is goldilocks- it protects officers while eliminating judicial confusion and bias
52 -Sheng 11
53 -(Philip, JD with distinction @ Bringham Young, B.A., Stanford University, John Arrillaga Scholar. An "Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive Force Cas-es Brought Under 42 U.S.C. § 1983 BYU Journal of Public Law 2011 The BYU Journal of Public Law 26 BYU J. Pub. L. 99)
54 -
55 -QI is the key barrier- counterplans don’t solve the case
56 -Hassel 09
57 -(Diana, Law @ Roger Williams, JD Rutgers, Excessive Reasonableness The Trustees of Indiana University Indiana Law Review 2009 Indiana Law Review 43 Ind. L. Rev. 117)
58 -
59 -The aff is key to meaningful challenges to police conduct and legitimacy of rule of law
60 -Hassel 09
61 -(Diana, Law @ Roger Williams, JD Rutgers, Excessive Reasonableness The Trustees of Indiana University Indiana Law Review 2009 Indiana Law Review 43 Ind. L. Rev. 117)
62 -
63 -Pre-empt biz
64 -
65 -Apply a strict filter to all negative arguments- if they aren’t
66 -A. About the use of excessive force
67 -B. Based on legal reasoning other than Anderson V. Creighton
68 -Then their evidence comes from inaccurate and incoherent legal scholarship and should be ignored
69 -Shapiro et al 01
70 -(JD - Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663 Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924 Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41 Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522 (U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M. KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )
71 -
72 -Err aff- consensus of experts agree
73 -Pittman 12
74 -(Nathan R., JD candidate, UNINTENTIONAL LEVELS OF FORCE IN § 1983 EXCESSIVE FORCE CLAIMS William and Mary Law Review William and Mary Law Review May, 2012 William and Mary Law Review 53 Wm. and Mary L. Rev. 2107)
EntryDate
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1 -2016-11-19 17:37:04.0
Judge
... ... @@ -1,1 +1,0 @@
1 -Alderete, Tim
Opponent
... ... @@ -1,1 +1,0 @@
1 -Appleton East MM
ParentRound
... ... @@ -1,1 +1,0 @@
1 -12
Round
... ... @@ -1,1 +1,0 @@
1 -2
Team
... ... @@ -1,1 +1,0 @@
1 -Harvard Westlake Nayar Aff
Title
... ... @@ -1,1 +1,0 @@
1 -NOV-DEC - AC - Rule of Law
Tournament
... ... @@ -1,1 +1,0 @@
1 -Glenbrooks
Caselist.CitesClass[9]
Cites
... ... @@ -1,53 +1,0 @@
1 -Plan text: Public colleges and universities in the United States ought not restrict constitutionally protected journalist speech
2 -
3 -Contention 1: Free speech is the controlling impact in any framework
4 -
5 -1. Free speech is a pre-requisite to any rational moral system- without it self-realization is impossible
6 -Eberle, Law @ Roger Williams, 94
7 -(Wake Forest LR, Winter)
8 -
9 -2. Free speech facilitates the development of moral reasoning- restrictions should be prima facie rejected
10 -Dwyer, PhD, 01
11 -(Susan, Phil@Maryland, Nordic Journal of Philosophy, Vol. 2, No. 2 ® Philosophia Press 2001)
12 -
13 -3. Consequentially, Free speech is a gateway to every other impact.
14 -D’Souza, PhD Phil @Oxford, 96
15 -(Frances, Prof. Anthropology Oxford, http://www.europarl.europa.eu/hearings/19960425/droi/freedom_en.htm?textMode=on)
16 -
17 -4. Epistemic humility demands free speech
18 -Dalmia, PhD, 16
19 -(Shikha, Senior Analyst/Award winning Journalist 9-22-16. http://reason.com/blog/2016/09/22/debating-nyus-jeremy-waldron-on-free-spe)
20 -
21 -Contention 2: Stop the Press
22 -
23 -1. Censorship of student journalism is increasing at the worst possible time. Censorship discourages questioning the government
24 -Schuman, PhD, 16
25 -(Rebecca, 12-8-16. http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
26 -
27 -2. The legal justification for newspaper censorship is a 7th circuit decision that applied Hazelwood to universities-this allows unchecked arbitrary censorship by administrators
28 -Goodman, Director Student Press Law Center, 05
29 -( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
30 -
31 -3. Regulation of newspapers is a crucial precedent used to justify widespread campus censorship-it uniquely empowers and protects administrators to censor
32 -Lukianoff, JD Stanford, 05
33 -(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)
34 -
35 -4. Universities are the most important site of first amendment activity- ignore negative evidence written about other contexts
36 -Goodman, Director Student Press Law Center, 05
37 -( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
38 -
39 -5. Campus free speech solves extinction
40 -Lukianoff, JD Stanford, 05
41 -(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)
42 -
43 -Contention 3: Civic Engagement
44 -
45 -1. Censorship of college journalism guts civic engagement
46 -LoMonte, SPLC Exec. Director, 06
47 -(Frank D., 12-1-06. http://www.splc.org/article/2016/12/college-media-threats-report-2016)
48 -
49 -2. Civic engagement is the vital internal link to solving every existential problem- its try or die for the affirmative
50 -Small 06 (Jonathan, former Americorps VISTA for the Human Services Coalition, “Moving Forward,” The Journal for Civic Commitment, Spring, http://www.mc.maricopa.edu/other/engagement/Journal/Issue7/Small.jsp)
51 -
52 -3. Trump victory proves the case is a disad to every K- failure to prioritize civic engagement causes rightwing takeover
53 -Rorty, PhD, 98 (Richard, Stanford Philosophy Professor, Achieving Our Country, pp. 87-94)
EntryDate
... ... @@ -1,1 +1,0 @@
1 -2017-01-06 04:15:33.0
Judge
... ... @@ -1,1 +1,0 @@
1 -Shagun Kukreja, Bailey Rung
Opponent
... ... @@ -1,1 +1,0 @@
1 -Dulles AW
ParentRound
... ... @@ -1,1 +1,0 @@
1 -13
Round
... ... @@ -1,1 +1,0 @@
1 -3
Team
... ... @@ -1,1 +1,0 @@
1 -Harvard Westlake Nayar Aff
Title
... ... @@ -1,1 +1,0 @@
1 -JAN-FEB Chronicle AC
Tournament
... ... @@ -1,1 +1,0 @@
1 -Newark Round Robin
Caselist.CitesClass[10]
Cites
... ... @@ -1,63 +1,0 @@
1 -Plan text: Public colleges and universities in the United States ought not restrict constitutionally protected journalist speech
2 -
3 -Contention 1: Free speech is the controlling impact in any framework
4 -
5 -1. Free speech is a pre-requisite to any rational moral system- without it self-realization is impossible
6 -Eberle, Law @ Roger Williams, 94
7 -(Wake Forest LR, Winter)
8 -
9 -2. Free speech facilitates the development of moral reasoning- restrictions should be prima facie rejected
10 -Dwyer, PhD, 01
11 -(Susan, Phil@Maryland, Nordic Journal of Philosophy, Vol. 2, No. 2 ® Philosophia Press 2001)
12 -
13 -3. Consequentially, Free speech is a gateway to every other impact.
14 -D’Souza, PhD Phil @Oxford, 96
15 -(Frances, Prof. Anthropology Oxford, http://www.europarl.europa.eu/hearings/19960425/droi/freedom_en.htm?textMode=on)
16 -
17 -4. Epistemic humility demands free speech
18 -Dalmia, PhD, 16
19 -(Shikha, Senior Analyst/Award winning Journalist 9-22-16. http://reason.com/blog/2016/09/22/debating-nyus-jeremy-waldron-on-free-spe)
20 -
21 -Contention 2: Stop the Press
22 -
23 -1. Censorship of student journalism is increasing at the worst possible time. Censorship discourages questioning the government
24 -Schuman, PhD, 16
25 -(Rebecca, 12-8-16. http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
26 -
27 -2. The legal justification for newspaper censorship is a 7th circuit decision that applied Hazelwood to universities-this allows unchecked arbitrary censorship by administrators
28 -Goodman, Director Student Press Law Center, 05
29 -( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
30 -
31 -3. Regulation of newspapers is a crucial precedent used to justify widespread campus censorship-it uniquely empowers and protects administrators to censor
32 -Lukianoff, JD Stanford, 05
33 -(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)
34 -
35 -4. Universities are the most important site of first amendment activity- ignore negative evidence written about other contexts
36 -Goodman, Director Student Press Law Center, 05
37 -( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
38 -
39 -5. The plan promotes activism and actively encourages dissent. Status quo Hosty decisions give a green light to admin involvement in all forms of politics. This censorship depoliticizes young people and spills into their future politics. Sanders 06
40 -Chris Sanders Jd Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities 58 Ala. L. Rev. 159, 2006
41 -
42 -6. Censorship is based in PR/funding concerns, not student wellbeing. Protest solves NC offense
43 -Schuman, PhD, 12-8-16
44 -(Rebecca, http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
45 -
46 -Contention 3: Civic Engagement
47 -
48 -1. Censorship of college journalism guts civic engagement
49 -LoMonte, SPLC Exec. Director, 06
50 -(Frank D., 12-1-06. http://www.splc.org/article/2016/12/college-media-threats-report-2016)
51 -
52 -2. Civic engagement is the vital internal link to solving problems which affects massive populations and devastate those who need help in society the most.
53 -Small 06 (Jonathan, former Americorps VISTA for the Human Services Coalition, “Moving Forward,” The Journal for Civic Commitment, Spring, http://www.mc.maricopa.edu/other/engagement/Journal/Issue7/Small.jsp)
54 -
55 -3. Trump victory proves the case is a disad to every K- failure to prioritize civic engagement causes rightwing takeover
56 -Rorty, PhD, 98 (Richard, Stanford Philosophy Professor, Achieving Our Country, pp. 87-94)
57 -
58 -Contention 4: Minority empowerment
59 -1. Counter speech is effective and empowers students. Calleros, Professor of Law at ASU, 95
60 -Charles R. Calleros, Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and Yun, 27 ARIZ. ST. L.J. 1249 (1995). CC
61 -
62 -2. Hate speech restrictions empower far right politicians and get modeled to justify repression in other countries Economist 12/15/16
63 -Economist 12-15-16 (http://www.economist.com/news/leaders/21711914-criminalising-offensive-language-only-empowers-bigots-defence-hate-speech)
EntryDate
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1 -2017-01-07 00:55:47.0
Judge
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1 -Chippada, Preet
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1 -Harrison BS
ParentRound
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1 -14
Round
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1 -1
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1 -Harvard Westlake Nayar Aff
Title
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1 -JAN-FEB - Chronicle AC V2
Tournament
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1 -Newark Invitational
Caselist.CitesClass[11]
Cites
... ... @@ -1,65 +1,0 @@
1 -Chronicle AC
2 -Part 1 is Framing
3 -
4 -Methodological pluralism is necessary for effective critique and is key to avoiding endless political violence in academia. Bleiker 14
5 -
6 -Bleiker 14 – (6/17, Roland, Professor of International Relations at the University of Queensland, "International Theory Between Reification and Self-Reflective Critique," International Studies Review, Volume 16, Issue 2, pages 325–327). NS
7 -
8 -
9 -Free speech is a pre-requisite to any rational moral system- without it self-realization is impossible. Eberle 94
10 -Eberle, Law @ Roger Williams, 94 (Wake Forest LR, Winter)
11 -
12 -
13 -Epistemic humility demands free speech. Dalmia, 9/22
14 -(Shikha, Senior Analyst/Award winning Journalist http://reason.com/blog/2016/09/22/debating-nyus-jeremy-waldron-on-free-spe)
15 -
16 -
17 -Consequentially, Free speech is a gateway to every other impact. D’Souza 96
18 -(Frances, Prof. Anthropology Oxford, http://www.europarl.europa.eu/hearings/19960425/droi/freedom_en.htm?textMode=on)
19 -
20 -
21 -Plan Text: Public colleges and universities in the United States ought not restrict any constitutionally protected journalist speech.
22 -
23 -Part 2 is Stop The Press
24 -
25 -Censorship of student journalism is increasing at the worst possible time. Censorship discourages questioning the government. Schuman 12/8
26 -(Rebecca, http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
27 -
28 -The legal justification for newspaper censorship is a 7th circuit decision that applied Hazelwood to universities-this allows unchecked arbitrary censorship by administrators. Goodman 05
29 -( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
30 -
31 -Regulation of newspapers is a crucial precedent used to justify widespread campus censorship-it uniquely empowers and protects administrators to censor. Lukianoff 05
32 -(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)
33 -
34 -The plan promotes activism and actively encourages dissent. Status quo Hosty decisions give a green light to admin involvement in all forms of politics. This censorship depoliticizes young people and spills into their future politics. Sanders 06
35 -Chris Sanders Jd Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities 58 Ala. L. Rev. 159, 2006
36 -*Bracketed for ableist language
37 -
38 -
39 -Part 3 is Civic Engagement
40 -
41 -Civic engagement is low now – post election polls and tech. Fate 1/11
42 -Tom Montgomery Fate is a graduate of the Iowa nonfiction writing program and teaches creative writing at the College of DuPage in suburban Chicago, On the social conscience of nonvoting college students, USA Today Network, 1/11/17 EE
43 -
44 -
45 -Censorship of college journalism guts civic engagement. LoMonte 12-1
46 -(Frank D., http://www.splc.org/article/2016/12/college-media-threats-report-2016)
47 -
48 -
49 -Civic engagement is the vital internal link to solving every existential problem- its try or die for the aff. Small 06
50 -(Jonathan, former Americorps VISTA for the Human Services Coalition, “Moving Forward,” The Journal for Civic Commitment, Spring, http://www.mc.maricopa.edu/other/engagement/Journal/Issue7/Small.jsp)
51 -
52 -Trump victory proves the case is a disad to every K- failure to prioritize civic engagement causes rightwing takeover. Rorty 98
53 -(Richard, Stanford Philosophy Professor, Achieving Our Country, pp. 87-94)
54 -
55 -Part 4 is Underview
56 -
57 -Censorship is based in PR/funding concerns, not student wellbeing. Protest solves NC offense. Schuman 12/8
58 -(Rebecca, http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
59 -
60 -Problematic speech shouldn’t be suppressed- that magnifies the impacts-prefer my evidence because it has internal weighing. Alexander 13
61 -(Larry, Is Freedom of Expression a Universal Right San Diego Law Review Summer, 2013 San Diego Law Review 50 San Diego L. Rev. 707)
62 -
63 -
64 -Endorsing speech doesn’t mask oppressive institutions, it’s a pre-requisite to challenging them. Redish 82
65 -(Martin H, University of Pennsylvania Law Review, Vol. 130, No. 3 (Jan., 1982), pp. 591-645)
EntryDate
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1 -2017-02-05 15:37:43.0
Judge
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1 -Matthew Leuvano
Opponent
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1 -Harker EM
ParentRound
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1 -15
Round
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1 -2
Team
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1 -Harvard Westlake Nayar Aff
Title
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1 -JAN-FEB - Chronicle AC V3
Tournament
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1 -Golden Desert
Caselist.CitesClass[12]
Cites
... ... @@ -1,82 +1,0 @@
1 -Chronicle AC
2 -Part 1 is Framing
3 -
4 -Methodological pluralism is necessary for effective critique and is key to avoiding endless political violence in academia. Bleiker 14
5 -
6 -Bleiker 14 – (6/17, Roland, Professor of International Relations at the University of Queensland, "International Theory Between Reification and Self-Reflective Critique," International Studies Review, Volume 16, Issue 2, pages 325–327). NS
7 -
8 -This book is part of an increasing trend of scholarly works that have embraced poststructural critique but want to ground it in more positive political foundations, while retaining a reluctance to return to the positivist tendencies that implicitly underpin much of constructivist research. The path that Daniel Levine has carved out is innovative, sophisticated, and convincing. A superb scholarly achievement. For Levine, the key challenge in international relations (IR) scholarship is what he calls “unchecked reification”: the widespread and dangerous process of forgetting “the distinction between theoretical concepts and the real-world things they mean to describe or to which they refer” (p. 15). The dangers are real, Levine stresses, because IR deals with some of the most difficult issues, from genocides to war. Upholding one subjective position without critical scrutiny can thus have far-reaching consequences. Following Theodor Adorno—who is the key theoretical influence on this book—Levine takes a post-positive position and assumes that the world cannot be known outside of our human perceptions and the values that are inevitably intertwined with them. His ultimate goal is to over- come reification, or, to be more precise, to recognize it as an inevitable aspect of thought so that its dangerous consequences can be mitigated. Levine proceeds in three stages: First he reviews several decades of IR theories to resurrect critical moments when scholars displayed an acute awareness of the dangers of reification. He refreshingly breaks down distinctions between conventional and progressive scholarship, for he detects self-reflective and critical moments in scholars that are usually associated with straightforward positivist positions (such as E.H. Carr, Hans Morgenthau, or Graham Allison). But Levine also shows how these moments of self-reflexivity never lasted long and were driven out by the compulsion to offer systematic and scientific knowledge. The second stage of Levine’s inquiry outlines why IR scholars regularly closed down critique. Here, he points to a range of factors and phenomena, from peer review processes to the speed at which academics are meant to publish. And here too, he eschews conventional wisdom, showing that work conducted in the wake of the third debate, while explicitly post-positivist and critiquing the reifying tendencies of existing IR scholarship, often lacked critical self-awareness. As a result, Levine believes that many of the respective authors failed to appreciate sufficiently that “reification is a consequence of all thinking—including itself” (p. 68). The third objective of Levine’s book is also the most interesting one. Here, he outlines the path toward what he calls “sustainable critique”: a form of self-reflection that can counter the dangers of reification. Critique, for him, is not just something that is directed outwards, against particular theories or theorists. It is also inward-oriented, ongoing, and sensitive to the “limitations of thought itself” (p. 12). The challenges that such a sustainable critique faces are formidable. Two stand out: First, if the natural tendency to forget the origins and values of our concepts are as strong as Levine and other Adorno-inspired theorists believe they are, then how can we actually recognize our own reifying tendencies? Are we not all inevitably and subconsciously caught in a web of meanings from which we cannot escape? Second, if one constantly questions one’s own perspective, does one not fall into a relativism that loses the ability to establish the kind of stable foundations that are necessary for political action? Adorno has, of course, been critiqued as relentlessly negative, even by his second-generation Frankfurt School successors (from Ju€rgen Habermas to his IR interpreters, such as Andrew Link- later and Ken Booth). The response that Levine has to these two sets of legitimate criticisms are, in my view, both convincing and useful at a practical level. He starts off with depicting reification not as a flaw that is meant to be expunged, but as an a priori condition for scholarship. The challenge then is not to let it go unchecked. Methodological pluralism lies at the heart of Levine’s sustainable critique. He borrows from what Adorno calls a “constellation”: an attempt to juxtapose, rather than integrate, different perspectives. It is in this spirit that Levine advocates multiple methods to understand the same event or phenomena. He writes of the need to validate “multiple and mutually incompatible ways of seeing” (p. 63, see also pp. 101–102). In this model, a scholar oscillates back and forth between different methods and paradigms, trying to understand the event in question from multiple perspectives. No single method can ever adequately represent the event or should gain the upper hand. But each should, in a way, recognize and capture details or perspectives that the others cannot (p. 102). In practical terms, this means combining a range of methods even when—or, rather, precisely when—they are deemed incompatible. They can range from poststructual deconstruction to the tools pioneered and championed by positivist social sciences. The benefit of such a methodological polyphony is not just the opportunity to bring out nuances and new perspectives. Once the false hope of a smooth synthesis has been abandoned, the very incompatibility of the respective perspectives can then be used to identify the reifying tendencies in each of them. For Levine, this is how reification may be “checked at the source” and this is how a “critically reflexive moment might thus be rendered sustainable” (p. 103). It is in this sense that Levine’s approach is not really post-foundational but, rather, an attempt to “balance foundationalisms against one another” (p. 14). There are strong parallels here with arguments advanced by assemblage thinking and complexity theory—links that could have been explored in more detail.
9 -
10 -Free speech is a pre-requisite to any rational moral system- without it self-realization is impossible. Eberle 94
11 -Eberle, Law @ Roger Williams, 94 (Wake Forest LR, Winter)
12 -
13 -The Court's decision in R.A.V. reaffirms the preeminence of free speech in our constitutional value structure. n62 Theoretically, free speech is intrinsically valuable as a chief means by which we develop our faculties and control our destinies. n63 Free speech is also of instrumental value in facilitating other worthy ends such as democratic or personal self-government, n64 public and private decisionmaking, n65 and the advancement of knowledge and truth. n66 Ultimately, the value of free speech rests upon a complex set of justifications, as compared to reliance on any single foundation. n67 The majority of the Court in R.A.V. preferred a nonconsequentialist view, finding that speech is valuable as an end itself, independent of any consequences that it might produce. In this view, free speech is an essential part of a just and free society that treats all people as responsible moral agents. Accordingly, people are entrusted with the responsibility of making judgments about the use or abuse of speech. n68 From this vantage point, the majority saw a certain moral equivalency in all speech. Even hate speech merits protection under the First Amendment, because all speech has intrinsic value. This is so because all speech, even hate speech, is a communication to the world, and therefore implicates the speaker's autonomy or self-realization. Additionally, any information might be valuable to a listener who can then decide its importance or how best to use it. Accordingly, any suspicion or evidence of governmental censorship must be vigilantly investigated.
14 -
15 -Epistemic humility demands free speech. Dalmia, 9/22
16 -(Shikha, Senior Analyst/Award winning Journalist http://reason.com/blog/2016/09/22/debating-nyus-jeremy-waldron-on-free-spe)
17 -One: Hate speech bans make us impatient and dogmatic The main reason that libertarians like me are partisans of free speech is not because we believe that a moral laissez faire, anything goes attitude, is in itself a good thing for society. Rather, it stems from an epistemic humility that we can't always know what is good or bad a priori – through a feat of pure Kantian moral reasoning. Moral principles, as much as scientific ones, have to be discovered and developed and the way to do so is by letting competing notions of morality duke it out in what John Stuart Mill called the marketplace of ideas. Ideas that win do so by harmonizing people's overt moral beliefs with their deeper moral intuitions or, as Jonathan Rauch notes, by providing a "moral education." This is how Mahatma Gandhi, Martin Luther King and Frank Kamney, the gay rights pioneer, managed to open society's eyes to its injustices even though what they were suggesting was so radical for their times. But this takes time. With free speech, societies have to play the long game. It takes time to change hearts and minds and one can't be certain that one's ideas will win out in the end. One has to be willing to lose. The fruits of censorship ~-~- winning by rigging the rules and silencing the other side ~-~- seem immediate and certain. But they unleash forces of thought control and dogmatism and repression and intolerance that are hard to contain, precisely what we are seeing right now on campuses.
18 -
19 -Consequentially, Free speech is a gateway to every other impact. D’Souza 96
20 -(Frances, Prof. Anthropology Oxford, http://www.europarl.europa.eu/hearings/19960425/droi/freedom_en.htm?textMode=on)
21 -
22 -In the absence of freedom of expression which includes a free and independent media, it is impossible to protect other rights, including the right to life. Once governments are able to draw a cloak of secrecy over their actions and to remain unaccountable for their actions then massive human rights violations can, and do, take place. For this reason alone the right to freedom of expression, specifically protected in the major international human rights treaties, must be considered to be a primary right. It is significant that one of the first indications of a government's intention to depart from democratic principles is the ever increasing control of information by means of gagging the media, and preventing the freeflow of information from abroad. At one end of the spectrum there are supposedly minor infringements of this fundamental right which occur daily in Western democracies and would include abuse of national security laws to prevent the publication of information which might be embarrassing to a given government: at the other end of the scale are the regimes of terror which employ the most brutal moves to suppress opposition, information and even the freedom to exercise religious beliefs. It has been argued, and will undoubtedly be discussed at this Hearing, that in the absence of free speech and an independent media, it is relatively easy for governments to capture, as it were, the media and to fashion them into instruments of propaganda, for the promotion of ethnic conflict, war and genocide. 2. Enshrining the right to freedom of expression The right to freedom of expression is formally protected in the major international treaties including the United Nations Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights. In addition, it is enshrined in many national constitutions throughout the world, although this does not always guarantee its protection. Furthermore, freedom of expression is, amongst other human rights, upheld, even for those countries which are not signatories to the above international treaties through the concept of customary law which essentially requires that all states respect the human rights set out in the Universal Declaration of Human Rights by virtue of the widespread or customary respect which has been built up in the post World War II years. 3. Is free speech absolute? While it is generally accepted that freedom of expression is, and remains the cornerstone of democracy, there are permitted restrictions encoded within the international treaties which in turn allow for a degree of interpretation of how free free speech should be. Thus, unlike the American First Amendment Rights which allow few, if any, checks on free speech or on the independence of the media, the international treaties are concerned that there should be a balance between competing rights: for example, limiting free speech or media freedom where it impinges on the individual's right to privacy; where free speech causes insult or injury to the rights and reputation of another; where speech is construed as incitement to violence or hatred, or where free speech would create a public disturbance. Given that these permitted restrictions are necessarily broad, the limits of free speech are consistently tested in national law courts and, perhaps even more importantly, in the regional courts such as the European Commission and Court of Human Rights. In recent years several landmark cases have helped to define more closely what restrictions may be imposed by government and under what circumstances. In particular, it has been emphasised by the European Court that any restriction must comply with a three-part test which requires that any such restriction should first of all be prescribed by law, and thus not arbitrarily imposed: proportionate to the legitimate aims pursued, and demonstrably necessary in a democratic society in order to protect the individual and/or the state. 4. Who censors what? Despite the rather strict rules which apply to restrictions on free speech that governments may wish to impose, many justifications are nevertheless sought by governments to suppress information which is inimical to their policies or their interests. These justifications include arguments in defence of national and/or state security, the public interst, including the need to protect public morals and public order and perfectly understandable attempts to prevent racism, violence, sexism, religious intolerance and damage to the indi-vidual's reputation or privacy. The mechanisms employed by governments to restrict the freeflow of information are almost endless and range from subtle economic pressures and devious methods of undermining political opponents and the independent media to the enactment of restrictive press laws and an insist-ence on licensing journalists and eventually to the illegal detention, torture and disappearances of journalists and others associated with the expression of independent views. 5. Examples of censorship To some the right to free speech may appear to be one of the fringe human rights, especially when compared to such violations as torture and extra-judicial killings. It is also sometimes difficult to dissuade the general public that censorship, generally assumed to be something to do with banning obscene books or magazines, is no bad thing! It requires a recognition of some of the fundamental principles of democracy to understand why censorship is so immensely dangerous. The conditon of democracy is that people are able to make choices about a wide variety of issues which affect their lives, including what they wish to see, read, hear or discuss. While this may seem a somewhat luxurious distinction preoccupying, perhaps, wealthy Western democracies, it is a comparatively short distance between government censorship of an offensive book to the silencing of political dissidents. And the distance between such silencing and the use of violence to suppress a growing political philosophy which a government finds inconvenient is even shorter. Censorship tends to have small beginnings and to grow rapidly. Allowing a government to have the power to deny people information, however trivial, not only sets in place laws and procedures which can and will be used by those in authority against those with less authority, but it also denies people the information which they must have in order to monitor their governments actions and to ensure accountability. There have been dramatic and terrible examples of the role that censorship has played in international politics in the last few years: to name but a few, the extent to which the media in the republics of former Yugoslavia were manipulated by government for purposes of propaganda; the violent role played by the government associated radio in Rwanda which incited citizens to kill each other in the name of ethnic purity and the continuing threat of murder issued by the Islamic Republic of Iran against a citizen of another country for having written a book which displeased them. 6. The link between poverty, war and denial of free speech There are undoubted connections between access to information, or rather the lack of it, and war, as indeed there are between poverty, the right to freedom of expression and development. One can argue that democracy aims to increase participation in political and other decision-making at all levels. In this sense democracy empowers people. The poor are denied access to information on decisions which deeply affect their lives, are thus powerless and have no voice; the poor are not able to have influence over their own lives, let alone other aspect of society. Because of this essential powerlessness, the poor are unable to influence the ruling elite in whose interests it may be to initiate conflict and wars in order to consolidate their own power and position. Of the 126 developing countries listed in the 1993 Human Development Report, war was ongoing in 30 countries and severe civil conflict in a further 33 countries. Of the total 63 countries in conflict, 55 are towards the bottom scale of the human development index which is an indicator of poverty. There seems to be no doubt that there is a clear association between poverty and war. It is reasonably safe to assume that the vast majority of people do not ever welcome war. They are normally coerced, more often than not by propaganda, into fear, extreme nationalist sentiments and war by their governments. If the majority of people had a democratic voice they would undoubtedly object to war. But voices are silenced. Thus, the freedom to express one's views and to challenge government decisions and to insist upon political rather than violent solutions, are necessary aspects of democracy which can, and do, avert war. Government sponsored propaganda in Rwanda, as in former Yugoslavia, succeeded because there weren't the means to challenge it. One has therefore to conclude that it is impossible for a particular government to wage war in the absence of a compliant media willing to indulge in government propaganda. This is because the government needs civilians to fight wars for them and also because the media is needed to re-inforce government policies and intentions at every turn.
23 -
24 -Plan Text: Public colleges and universities in the United States ought not restrict any constitutionally protected journalist speech.
25 -
26 -Part 2 is Stop The Press
27 -
28 -Censorship of student journalism is increasing at the worst possible time. Censorship discourages questioning the government. Schuman 12/8
29 -(Rebecca, http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
30 -Well, here’s some great news to cheer you up: The American student press is under siege! Apparently, we’ve been too busy blowing gaskets over professor watch lists and “safe spaces” to recognize the actual biggest threat to free speech on college campuses today. According to a new report by the American Association of University Professors, in conjunction with three other nonpartisan free-speech advocacy organizations, a disquieting trend of administrative censorship of student-run media has been spreading quietly across the country—quietly, of course, because according to the report, those censorship efforts have so far been successful. The report finds that recent headlines out of Mount St. Mary’s University, for example, may be “just the tip of a much larger iceberg.” Indeed, “it has become disturbingly routine for student journalists and their advisers to experience overt hostility that threatens their ability to inform the campus community and, in some instances, imperils their careers or the survival of their publications.” The report chronicles more than 20 previously unreported cases of media advisers “suffering some degree of administrative pressure to control, edit, or censor student journalistic content.” Furthermore, this pressure came “from every segment of higher education and from every institutional type: public and private, four-year and two-year, religious and secular.” It gets worse. In many of the cases in the report, administration officials “threatened retaliation against students and advisers not only for coverage critical of the administration but also for otherwise frivolous coverage that the administrators believed placed the institution in an unflattering light,” including an innocuous listicle of the best places to hook up on campus. In many cases, the student publications were subject to prior review from either an adviser who reported directly to the administration or the administration itself. Prior review means getting what’s in your newspaper signed off on by someone up top before it can be published. It is—to use the parlance of my years of professional journalistic training that began with my time as features editor of the Vassar College Miscellany News in the mid-’90s—absolute bullshit. (At public universities, it’s also illegal.) First, and most obviously, this is because a free student press is a hallmark of the American higher education system, and any threat to that freedom is on its face worrying. But there’s also this: The last thing we need right now, in the creeping shadow of American authoritarianism, is an entire generation of fledgling journalists who’ve come up thinking censorship is acceptable.
31 -
32 -The legal justification for newspaper censorship is a 7th circuit decision that applied Hazelwood to universities-this allows unchecked arbitrary censorship by administrators. Goodman 05
33 -( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
34 -In contrast to many high school censorship incidents, public college administrators today are less likely to be successful in their efforts to restrict the student press. This is usually (and perhaps only) because of the First Amendment protections that courts have consistently accorded college journalists. That circumstance would surely change were Hazelwood extended to limit the rights of college student journalists. Among some of the stories in college student publications that could be subject to censorship under the Hazelwood standard: • An opinion piece opposing an upcoming referendum that would have provided the college with revenue collected from property taxes. University officials, claiming the paper contained typographical and grammatical errors, confiscated and destroyed 10,000 copies of the paper. After students threatened legal action, the school agreed to reprint the newspaper.14 • An article detailing the incoming university president’s expenditure of state funds, including more than $100,000 spent to remodel the president’s home and pay for *17 his inauguration. Following publication, the president transferred the newspaper’s adviser to another position at the school, an act that generated considerable public attention. The president later resigned after being questioned by state legislators regarding the spending that had been reported in the student newspaper. The adviser was remstated.15 • A yearbook story reporting that members of the school’s volleyball team were removed for bringing alcohol on a team trip and a feature spread on sex and relationships. Following publication, the yearbook editor lost his job. After the editor sued, the school agreed to a settlement in which it paid the editor $10,000 and agreed to a publications policy that prohibited administrative interference with the content of student publications.16 • An editorial cartoon, featuring cartoon figures as university officials, commenting on a U.S. Department of Education report that found the school had misused public funds when it paid for a trip to Disney World by students and school officials. One of those portrayed, the vice president of student affairs, temporarily halted printing of the issue - but released them after students objected.17 If Hazelwood is allowed to determine the level of First Amendment protection to which America’s college student media are entitled, there is no doubt university administrators are poised to take advantage of their new *18 censorship powers. Word has already begun to spread that the standard “hands-off student media” policies recognized by college officials in the past may no longer be required. In California, for example - 2,000 miles west of the Governors State University campus and far beyond the jurisdiction of the Seventh Circuit - administrators at California State University system schools received a memo from the system’s legal counsel on June 30, 2005 - ten days after the Seventh Circuit handed down its decision - informing them that “Hosty appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers….”18 Extending Hazelwood to the university setting is a recipe for encouraging censorship that would dramatically hinder the production of good journalism and the training of good journalists. Amici do not believe this Court intended the censorship of college and university student newspapers to be the legacy of Hazelwood.
35 -
36 -Regulation of newspapers is a crucial precedent used to justify widespread campus censorship-it uniquely empowers and protects administrators to censor. Lukianoff 05
37 -(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)
38 -Commentators from across the political spectrum, while often disagreeing on the source, the scale, and the cause of the chilling of free speech on campus, have described the current campus environment as one where the “marketplace of ideas” is under siege.13 Whether in the name of “ tolerance,” *17 risk management, or merely peace and quiet, hundreds (if not thousands) of universities have enacted policies and engaged in practices hostile to free and open discourse over the past few decades.14 Starting in the 1980s, colleges enacted “speech codes” under a variety of creative legal theories. Despite numerous decisions ruling these codes unconstitutional15 and this Court's decision in R.A. E v. City of St. Paul, 505 U.S. 377 (1992), which indicated that viewpoint-based speech codes would be unconstitutional, the number of university speech codes actually increased through the 1990s, see Jon Gould, The Precedent that Wasn't, 35 Law and Soc'y Rev. 345 (2001). Over the past twenty years, numerous books have been written alleging an illiberal, intolerant, and/or partisan atmosphere on campus16 in which dissenting viewpoints and unpopular groups are repressed through a variety of measures. More recently, universities have adopted highly restrictive, and sometimes absurd “speech *18 zone” policies restricting speech from all but small comers of the university.17 Thus far, the law has served to protect the collegiate marketplace of ideas from overreaching administrations, requiring policies and practices in keeping with the First Amendment and academic freedom. For example, in Rosenberger, this Court granted religious student groups equal access to student fee funding. In Bait v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003), a federal court in Pennsylvania ruled Shippensburg University's speech code was unconstitutionally overbroad, and in Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004), a federal court in Texas dismissed a speech zone policy as unconstitutionally overbroad. The Hosty decision, however, is a step in the opposite direction. College administrators have already demonstrated a tenacious will to censor even when the law clearly limited their ability to do so. The legal ambiguity that Hosty creates, the unparalleled discretion it grants college administrators, and the legal protection it provides to administrators who censor all threaten to dramatically worsen the campus free speech crisis. If allowed to stand, Hosty will have numerous, specific, predictable, and far reaching negative consequences for free speech and robust debate on America's college campuses. It is no exaggeration to say that the Hosty opinion threatens the existence of the independent collegiate media. Universities have not shown great tolerance for the free press. If there is no longer a presumption of independence or of public forum status when a public university establishes a student newspaper, *19 there should be no doubt that administrators who wish to censor will take advantage of this ambiguity. Public universities will be able to argue that any paper that receives any kind of benefit - whether financial support or simply the use of office space - from the university is subject to administrative control. If past experience is any guide, colleges will pay lip service to the importance of student press freedom, but they will quickly take advantage of any legal means available to punish or control student newspapers that anger or offend students or administrators. For example, in a memorandum to all California State University presidents written only ten days after the Hosty decision, California State University General Counsel Christine Helwick wrote that: while the Hosty decision is from another jurisdiction and, as such, does not directly impact the CSU, the case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers, provided that there is an established practice of regularized content review and approval for pedagogical purposes.18 In this same way, Hosty threatens the existence of independent student groups. If the primary question under Hosty is whether a student group is in some way “subsidized,” any group that receives any sort of benefit or student fees could be threatened with administrative control. The possibility that a court might later determine that the student group or publication was entitled to some form of public forum status would hardly protect the overwhelming majority of these groups that are neither willing nor affluent enough to mount a legal defense. *20 This case also re-opens issues relating to collegiate liability for student media and student groups formerly considered settled. It also allows administrators virtually unlimited freedom to experiment with censorship above and beyond even the broad discretion granted to them under Hosty. Finally, there is no reason to believe this holding will remain limited to public colleges - private colleges that promise free speech to their students tend to base their own speech policies on First Amendment standards.19 Hosty v. Carter will have reverberations from the community college to the Ivy League. Administrators will impose the “intellectual strait jacket” that this Court has long feared, and the consequences will be profound. As FIRE co-founder Alan Charles Kors once said, “A nation that does not educate in freedom will not survive in freedom, and will not even know when it is lost.”20
39 -
40 -The plan promotes activism and actively encourages dissent. Status quo Hosty decisions give a green light to admin involvement in all forms of politics. This censorship depoliticizes young people and spills into their future politics. Sanders 06
41 -Chris Sanders Jd Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities 58 Ala. L. Rev. 159, 2006
42 -*Bracketed for ableist language
43 -
44 -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 Hazelwood's 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 school's 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 publishing" 103 and warned that Hosty "now gives the green light to school administrators to restrict student speech in a manner inconsistent with the First Amendment." 104¶ B. The Big Chill: How the Hazelwood Framework Could Hurt College Students' Free Speech¶ Even though the Supreme Court opted not to hear an appeal in Hosty, 105 the Seventh Circuit's controversial decision has reinvigorated the old Hazelwood debate and has raised the prospect of college students' fighting the same sort of First Amendment battles they thought they had left behind upon their high school graduations. It thus is both timely and relevant to examine the hazardous and unintended consequences that could ensue if Hazelwood goes to college. *171 ¶ 1. Say No More: Hazelwood's Dangers for College Students' Free Expression¶ Post-Hazelwood censorship disputes have not been limited to high schools; a number of colleges and universities have gotten in on the action as well. In 2003, the acting president of Hampton University in Virginia seized the entire press run of the student newspaper, Hampton Script, after it printed her letter responding to a story about a school cafeteria's health-code violations on page three, rather than on the front page as she requested. 106 An Indiana university last year briefly instituted a policy to require students to get approval from the school's marketing department before speaking with reporters. 107 In Alabama, an art student sued in late 2005 after university officials removed his artwork, which included nudity, from an on-campus exhibit that cautioned visitors before they entered that some of the works might contain nudity. 108 And a growing number of higher-education institutions have begun to test the First Amendment's boundaries by establishing "free speech zones" that limit the on-campus locations where citizens can express their grievances 109 and by instituting (frequently overbroad) "speech codes" in an attempt to combat racial and sexual harassment. 110¶ In today's atmosphere of increasing collegiate regulation of student speech, the application of the Hazelwood test to universities could unintentionally cripple destroy college journalism. Because most colleges' student publications receive some form of financial assistance from the university ~-~- either directly through student fee allocations or indirectly through the provision of free or low-cost office space or equipment ~-~- the 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 *172 that could make their school look bad. Inevitably, like many of their high school counterparts, some might decide to forego the hassle. 112¶ The fallout from Hazelwood's application to colleges would not be limited to newspapers and yearbooks. 113 Other forms of student expression, such as a student group's choice of speaker or performance artist, could be subject to administrative veto. Newly created publications would be especially vulnerable, as they would likely have a more difficult time demonstrating their status as a public forum than established publications. Even professors could wake up one day to discover that the academic freedom they have cherished for so long is now nothing more than "a professional courtesy that college administrators may lawfully disregard on pedagogical grounds." 114 If Hazelwood arrives on college campuses, it is difficult to see a stopping point for the wreckage it could leave in its wake.¶ 2. "Too Much Freedom": How the Extension of Hazelwood to Universities Could Endanger the Future of the First Amendment¶ 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 *173 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 survey's adult respondents said the First Amendment "goes too far in the rights it guarantees," down from almost 50 in 2002 (shortly after the September 11, 2001, terrorist attacks). 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.
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46 -Part 3 is Civic Engagement
47 -
48 -Civic engagement is low now – post election polls and tech. Fate 1/11
49 -Tom Montgomery Fate is a graduate of the Iowa nonfiction writing program and teaches creative writing at the College of DuPage in suburban Chicago, On the social conscience of nonvoting college students, USA Today Network, 1/11/17 EE
50 -
51 -This year, too many college students lost faith in our political system and American idealism — in the social conscience that we inherited from our founding fathers and mothers. Many students — including mine — were disillusioned by this election. Post-election polling confirms this: the 2016 college vote was way down in many states. And a thousand viral memes or GIFs didn’t help remedy that. Our remarkable technological innovations over the last 40 years have not led to more democratic elections or to higher voter turnout or a more politically astute electorate. Rather, major news networks and social media transformed the 2016 election into a 24/7 reality TV show. If the point of the election is to entertain rather than educate, why wouldn’t an entertainer be elected? I can imagine what some students were thinking: Why vote if the election has been cyber-hacked by the Russians but no one seems to care? Why vote if the billionaire candidate has proven in his late night tweeting that serial lying is not only OK but an effective marketing strategy? Why vote if the Presidency and the government itself are increasingly perceived as business opportunities? Yes, college students are to blame for not voting in 2016, for not stepping up, for contributing to Hillary Clinton’s loss. But so is my generation — for setting the bar so low, for dismissing the democratic idealism that this country was founded on.
52 -
53 -Censorship of college journalism guts civic engagement. LoMonte 12-1
54 -(Frank D., http://www.splc.org/article/2016/12/college-media-threats-report-2016)
55 -Frank D. LoMonte, executive director of the SPLC, said, “It is hypocritical for colleges to claim they support civic engagement while defunding student news organizations, removing well-qualified faculty advisers, and otherwise intimidating journalists into compliance. Colleges are more obsessed with promoting a favorable public image than ever before, but a college that retaliates against students and faculty for unflattering journalism doesn't just look bad—it is bad. We need a top-level commitment from the presidents of America's colleges and universities to support editorially independent student-run news coverage, including secure funding and retaliation protection for students and their advisers.” Joan Bertin, NCAC executive director, said, “This report exposes restrictions on press and speech freedoms on campus and exhorts college and university administrators to educate students in the operation of our constitutional system by allowing students to engage in its most critical functions: seeking information, becoming engaged and informed, and speaking out on matters of importance.” Kelley Lash, president of CMA, said, “This issue impacts millions of educators and students. College Media Association emphatically supports the First Amendment freedoms of all student media at all institutions, both public and private, and agrees that these media must be free from all forms of external interference designed to influence content. Student media participants, and their advisers, should not be threatened or punished due to the content of the student media. Their rights of free speech and free press must always be guaranteed.”
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57 -
58 -Civic engagement is the vital internal link to solving every existential problem- its try or die for the aff. Small 06
59 -(Jonathan, former Americorps VISTA for the Human Services Coalition, “Moving Forward,” The Journal for Civic Commitment, Spring, http://www.mc.maricopa.edu/other/engagement/Journal/Issue7/Small.jsp)
60 -What will be the challenges of the new millennium? And how should we equip young people to face these challenges? While we cannot be sure of the exact nature of the challenges, we can say unequivocally that humankind will face them together. If the end of the twentieth century marked the triumph of the capitalists, individualism, and personal responsibility, the new century will present challenges that require collective action, unity, and enlightened self-interest. Confronting global warming, depleted natural resources, global super viruses, global crime syndicates, and multinational corporations with no conscience and no accountability will require cooperation, openness, honesty, compromise, and most of all solidarity – ideals not exactly cultivated in the twentieth century. We can no longer suffer to see life through the tiny lens of our own existence. Never in the history of the world has our collective fate been so intricately interwoven. Our very existence depends upon our ability to adapt to this new paradigm, to envision a more cohesive society. With humankind’s next great challenge comes also great opportunity. Ironically, modern individualism backed us into a corner. We have two choices, work together in solidarity or perish together in alienation. Unlike any other crisis before, the noose is truly around the neck of the whole world at once. Global super viruses will ravage rich and poor alike, developed and developing nations, white and black, woman, man, and child. Global warming and damage to the environment will affect climate change and destroy ecosystems across the globe. Air pollution will force gas masks on our faces, our depleted atmosphere will make a predator of the sun, and chemicals will invade and corrupt our water supplies. Every single day we are presented the opportunity to change our current course, to survive modernity in a manner befitting our better nature. Through zealous cooperation and radical solidarity we can alter the course of human events. Regarding the practical matter of equipping young people to face the challenges of a global, interconnected world, we need to teach cooperation, community, solidarity, balance and tolerance in schools. We need to take a holistic approach to education. Standardized test scores alone will not begin to prepare young people for the world they will inherit. The three staples of traditional education (reading, writing, and arithmetic) need to be supplemented by three cornerstones of a modern education, exposure, exposure, and more exposure. How can we teach solidarity? How can we teach community in the age of rugged individualism? How can we counterbalance crass commercialism and materialism? How can we impart the true meaning of power? These are the educational challenges we face in the new century. It will require a radical transformation of our conception of education. We’ll need to trust a bit more, control a bit less, and put our faith in the potential of youth to make sense of their world. In addition to a declaration of the gauntlet set before educators in the twenty-first century, this paper is a proposal and a case study of sorts toward a new paradigm of social justice and civic engagement education. Unfortunately, the current pedagogical climate of public K-12 education does not lend itself well to an exploratory study and trial of holistic education. Consequently, this proposal and case study targets a higher education model. Specifically, we will look at some possibilities for a large community college in an urban setting with a diverse student body. Our guides through this process are specifically identified by the journal Equity and Excellence in Education. The dynamic interplay between ideas of social justice, civic engagement, and service learning in education will be the lantern in the dark cave of uncertainty. As such, a simple and straightforward explanation of the three terms is helpful to direct this inquiry. Before we look at a proposal and case study and the possible consequences contained therein, this paper will draw out a clear understanding of how we should characterize these ubiquitous terms and how their relationship to each other affects our study. Social Justice, Civic Engagement, Service Learning and Other Commie Crap Social justice is often ascribed long, complicated, and convoluted definitions. In fact, one could fill a good-sized library with treatises on this subject alone. Here we do not wish to belabor the issue or argue over fine points. For our purposes, it will suffice to have a general characterization of the term, focusing instead on the dynamics of its interaction with civic engagement and service learning. Social justice refers quite simply to a community vision and a community conscience that values inclusion, fairness, tolerance, and equality. The idea of social justice in America has been around since the Revolution and is intimately linked to the idea of a social contract. The Declaration of Independence is the best example of the prominence of social contract theory in the US. It states quite emphatically that the government has a contract with its citizens, from which we get the famous lines about life, liberty and the pursuit of happiness. Social contract theory and specifically the Declaration of Independence are concrete expressions of the spirit of social justice. Similar clamor has been made over the appropriate definitions of civic engagement and service learning, respectively. Once again, let’s not get bogged down on subtleties. Civic engagement is a measure or degree of the interest and/or involvement an individual and a community demonstrate around community issues. There is a longstanding dispute over how to properly quantify civic engagement. Some will say that today’s youth are less involved politically and hence demonstrate a lower degree of civic engagement. Others cite high volunteer rates among the youth and claim it demonstrates a high exhibition of civic engagement. And there are about a hundred other theories put forward on the subject of civic engagement and today’s youth. But one thing is for sure; today’s youth no longer see government and politics as an effective or valuable tool for affecting positive change in the world. Instead of criticizing this judgment, perhaps we should come to sympathize and even admire it. Author Kurt Vonnegut said, “There is a tragic flaw in our precious Constitution, and I don’t know what can be done to fix it. This is it: only nut cases want to be president.” Maybe the youth’s rejection of American politics isn’t a shortcoming but rather a rational and appropriate response to their experience. Consequently, the term civic engagement takes on new meaning for us today. In order to foster fundamental change on the systemic level, which we have already said is necessary for our survival in the twenty-first century, we need to fundamentally change our systems. Therefore, part of our challenge becomes convincing the youth that these systems, and by systems we mean government and commerce, have the potential for positive change. Civic engagement consequently takes on a more specific and political meaning in this context. Service learning is a methodology and a tool for teaching social justice, encouraging civic engagement, and deepening practical understanding of a subject. Since it is a relatively new field, at least in the structured sense, service learning is only beginning to define itself. Through service learning students learn by experiencing things firsthand and by exposing themselves to new points of view. Instead of merely reading about government, for instance, a student might experience it by working in a legislative office. Rather than just studying global warming out of a textbook, a student might volunteer time at an environmental group. If service learning develops and evolves into a discipline with the honest goal of making better citizens, teaching social justice, encouraging civic engagement, and most importantly, exposing students to different and alternative experiences, it could be a major feature of a modern education. Service learning is the natural counterbalance to our current overemphasis on standardized testing. Social justice, civic engagement, and service learning are caught in a symbiotic cycle. The more we have of one of them; the more we have of all of them. However, until we get momentum behind them, we are stalled. Service learning may be our best chance to jumpstart our democracy. In the rest of this paper, we will look at the beginning stages of a project that seeks to do just that.
61 -
62 -Trump victory proves the case is a disad to every K- failure to prioritize civic engagement causes rightwing takeover. Rorty 98
63 -(Richard, Stanford Philosophy Professor, Achieving Our Country, pp. 87-94)
64 -If the formation of hereditary castes continues unimpeded, and if the pressures of globalization create such castes not only in the United States but in all the old democracies, we shall end up in an Orwellian world. In such a world, there may be no supernational analogue of Big Brother, or any official creed analogous to Ingsoc. But there will be an analogue of the Inner Party—namely, the international, cosmopolitan super-rich. They will make all the important decisions. The analogue of Orwell’s Outer Party will be educated, comfortably off, cosmopolitan professionals—Lind’s “overclass,” the people like you and me. The job of people like us will be to make sure that the decisions made by the Inner Party are carried out smoothly and efficiently. It will be in the interest of the international super-rich to keep our class relatively prosperous and happy. For they need people who can pretend to be the political class of each of the individual nation-states. For the sake of keeping the proles quiet, the super-rich will have to keep up the pretense that national politics might someday make a difference. Since economic decisions are their prerogative, they will encourage politicians, of both the Left and the Right, to specialize in cultural issues.7 The aim will be to keep the minds of the proles elsewhere—to keep the bottom 75 percent of Americans and the bottom 95 percent of the world’s population busy with ethnic and religious hostilities, and with debates about sexual mores. If the proles can be distracted from their own despair by media-created psuedo-events, including the occasional brief and bloody war, the super-rich will have little to fear. Contemplation of this possible world invites two responses from the Left. The first is to insist that the inequalities between nations need to be mitigated—and, in particular, that the Northern Hemisphere must share its wealth with the Southern. The second is to insist that the primary responsibility of each democratic nation-state is to its own least advantaged citizens. These two responses obviously conflict with each other. In particular, the first response suggests that the old democracies should open their borders, whereas the second suggests that they should close them.8 The first response comes naturally to academic leftists, who have always been internationally minded. The second response comes naturally to members of trade unions, and to the marginally employed people who can most easily be recruited into right-wing populist movements. Union members in the United States have watched factory after factory close, only to reopen in Slovenia, Thailand, or Mexico. It is no wonder that they see the result of international free trade as prosperity for managers and stockholders, a better standard of living for workers in developing countries, and a very much worse standard of living for American workers. It would be no wonder if they saw the American leftist intelligentsia as on the same side of the managers and stockholders—as sharing the same class interests. For we intellectuals, who are mostly academics, are ourselves quite well insulated, at least in the short run, from the effects of globalization. To make things worse, we often seem more interested in the workers of the developing world than in the fate of our fellow citizens. Many writers on socioeconomic policy have warned that the old industrialized democracies are heading into a Weimar-like period, one in which populist movements are likely to overturn constitutional governments. Edward Luttwak, for example, has suggested that fascism may be the American future. The point of his book The Endangered American Dream is that members of labor unions, and unorganized unskilled workers, will sooner or later realize that their government is not even trying to prevent wages from sinking or to prevent jobs from being exported. Around the same time, they will realize that suburban white-collar workers—themselves desperately afraid of being downsized—are not going to let themselves be taxed to provide social benefits for anyone else. At that point, something will crack. The nonsuburban electorate will decide that the system has failed and start looking around for a strongman to vote for—someone will assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salemen, and postmodernist professors will no longer be calling the shots. A scenario like that of Sinclair Lewis’ novel It Can’t Happen Here may then be played out. For once such a strongman takes office, nobody can predict what will happen. In 1932, most of the predictions made about what would happen if Hindenburg named Hitler chancellor were wildly overoptimistic. One thing that is very likely to happen is that the gains made in the past forty years by black and brown Americans, and by homosexuals, will be wiped out. Jocular contempt for women will come back into fashion. The words “nigger” and “kike” will once again be heard in the workplace. All the sadism which the academic Left has tried to make unacceptable to its students will come flooding back. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet. But such a renewal of sadism will not alter the effects of selfishness. For after my imagined strongman takes charge, he will quickly make peace with the international superrich, just as Hitler made with the German industrialists. He will invoke the glorious memory of the Gulf War to provoke military adventures which will generate short-term prosperity. He will be a disaster for the country and the world. People will wonder why there was so little resistance to his evitable rise. Where, they will ask, was the American Left? Why was it only rightists like Buchanan who spoke to the workers about the consequences of globalization? Why could not the Left channel the mounting rage of the newly dispossesed? It is often said that we Americans, at the end of the twentieth century, no longer have a Left. Since nobody denies the existence of what I have called the cultural Left, this amounts to an admission that that Left is unable to engage in national politics. It is not the sort of the Left which can be asked to deal with the consequences of globalization. To get the country to deal with those consequences, the present cultural Left would have to transform itself by opening relations with the residue of the old reformist Left, and in particular with the labor unions. It would have to talk much more about money, even at the cost of talking less about stigma. I have two suggestions about how to effect this transition. The first is that the Left should put a moratorium on theory. It should try to kick its philosophy habit. The second is that the Left should try to mobilize what remains of our pride in being Americans. It should ask the public to consider how the country of Lincoln and Whitman might be achieved. In support of my first suggestion, let me cite a passage from Dewey’s Reconstruction in Philosophy in which he expresses his exasperation with the sort of sterile debate now going on under the rubric of “individualism versus communitarianism.” Dewey thought that all discussions which took this dichotomy seriously suffer from a common defect. They are all committed to the logic of general notions under which specific situations are to be brought. What we want is light upon this or that group of individuals, this or that concrete human being, this or that special institution or social arrangement. For such a logic of inquiry, the traditionally accepted logic substitutes discussion of the meaning of concepts and their dialectical relationships with one another. Dewey was right to be exasperated by sociopolitical theory conducted at this level of abstraction. He was wrong when he went on to say that ascending to this level is typically a rightist maneuver, one which supplies “the apparatus for intellectual justifications of the established order.”9 For such ascents are now more common on the Left than on the Right. The contemporary academic Left seems to think that the higher your level of abstraction, the more subversive of the established order you can be. The more sweeping and novel your conceptual apparatus, the more radical your critique. When one of today’s academic leftists says that some topic has been “inadequately theorized,” you can be pretty certain that he or she is going to drag in either philosophy of language, or Lacanian psychoanalysis, or some neo-Marxist version of economic determinism. Theorists of the Left think that dissolving political agents into plays of differential subjectivity, or political initiatives into pursuits of Lacan’s impossible object of desire, helps to subvert the established order. Such subversion, they say, is accomplished by “problematizing familiar concepts.” Recent attempts to subvert social institutitons by problematizing concepts have produced a few very good books. They have also produced many thousands of books which represent scholastic philosophizing at its worts. The authors of these purportedly “subversive” books honestly believe that the are serving human liberty. But it is almost impossible to clamber back down from their books to a level of abstraction on which one might discuss the merits of a law, a treaty, a candidate or a political strategy. Even though what these authors “theorize” is often something very concrete and near at hand—a curent TV show, a media celebrity, a recent scandal—they offer the most absract and barren explanations imaginable. These futile attempts to philosophize one’s way into political relevance are a symptom of what happens when a Left retreats from activism and adopts a spectatorial approach to the problems of its country. Disengagement from practice produces theoretical hallucinations. These result in an intellec- tual environment which is, as Mark Edmundson says in his book Nightmare on Main Street, Gothic. The cultural Left is haunted by ubiquitous specters, the most frightening of which is called "power." This is the name of what Edmund- son calls Foucault's "haunting agency, which is everywhere and nowhere, as evanescent and insistent as a resourceful spook."10
65 -
66 -Part 4 is Underview
67 -
68 -
69 -1. PICS are rolled back- no chance they survive constitutional challenge
70 -Rabe, MA/JD, 03
71 -(Lee Ann, STICKS AND STONES: THE FIRST AMENDMENT AND CAMPUS SPEECH CODES The John Marshall Law Review Fall, 2003 37 J. Marshall L. Rev. 205)
72 -These two cases remain the only two challenges to campus speech codes in federal court. In both cases, the district courts *216 struck down the codes as unconstitutionally vague and overbroad. This track record does not bode well for public university administrators who seek to protect their campus and students by limiting student speech. The speech that administrators want to prohibit through speech codes is difficult to precisely define. If the code covers too much speech, the courts are likely to find that the code is overbroad. If the code covers too little speech, administrators are unlikely to achieve their goal of a safer campus because much of the speech they seek to prohibit will be allowed. If the speech code seeks to be undefined enough to cover all the speech the administrators find harmful, the courts are likely to find that the code is unconstitutionally vague. If speech codes can be written in a way that satisfies both the Constitution and the goal of a safe and supportive campus, the road to such a code is a narrow one indeed.
73 -
74 -
75 -2. Problematic speech shouldn’t be suppressed- that magnifies the impacts-prefer my evidence because it has internal weighing. Alexander 13
76 -(Larry, Is Freedom of Expression a Universal Right San Diego Law Review Summer, 2013 San Diego Law Review 50 San Diego L. Rev. 707)
77 -
78 -One commentator has characterized the consequentialist considerations for freeing up some speech that might be suppressed because of two-step harms in the following way: First, being able to speak our minds makes us feel good. True, we tailor our words to civility, persuasion, kindness, or other purposes, but that is our choice. Censors claim the right to purge other people's talk - all the while insisting that it is for our own good. Second, much censorship appears irrational and alarmist in retrospect because the reasons people choose and use words are vastly more interesting than the systems designed to limit them. It's not hard to make a list of absurdities - I'm particularly fond of a rash of state laws that forbid the disparagement of agricultural products - but simplistic explanations and simple-minded responses are as dangerous as they are ditzy. In one of the few places that postmodern theory and common sense intersect, it is obvious that the meaning and perception of words regularly depend on such variables as speaker and spoken to, individual experience and shared history, and the setting, company, and spirit in which something is said. To give courts or other authorities the power to determine all this is, to put it mildly, mind-boggling. Third, censorship is inimical to democracy. Cloaking ideas and information in secrecy encourages ignorance, corruption, demagoguery, a corrosive distrust of authority, and a historical memory resembling Swiss cheese. Open discussion, on the other hand, allows verities to be examined, errors to be corrected, disagreement to be expressed, and anxieties to be put in perspective. It also forces communities to confront their problems directly, which is more likely to lead to real solutions than covering them up. Fourth, censorship backfires. Opinions, tastes, social values, and mores change over time and vary among people. Truth can be a protean thing. The earth's rotation, its shape, the origins of humankind, and the nature of matter were all once widely understood to be something different *719 from what we know today, yet those who challenged the prevailing faith were mocked and punished for their apostasy. Banning ideas in an attempt to make the world safe from doubt, disaffection, or disorder is limiting, especially for people whose lives are routinely limited, since the poor and politically weak are the censor's first targets. Finally, censorship doesn't work. It doesn't get rid of bad ideas or bad behavior. It usually doesn't even get rid of bad words, and history has shown repeatedly that banning the unpalatable merely drives it underground. It could be argued that that's just fine, that vitriolic or subversive speech, for example, shouldn't dare to speak its name. But hateful ideas by another name - disguised as disinterested intellectual inquiry, or given a nose job like Ku Klux Klansman David Duke before he ran for governor of Louisiana - are probably more insidious than those that are clearly marginal. n22 Let me close with a couple of examples. So-called hate speech - speech that disparages ethnic, racial, or religious groups - is generally prohibited in most Western countries but not in the United States, where it is constitutionally protected as a matter of freedom of speech. If we leave aside the one-step harm of offense and focus on the two-step harms of inciting others to violence or to discrimination against members of the disparaged groups, we can understand why some countries, given their history and culture, would be quite fearful of the effects hate speech might have. For example, think of Germany and anti-Semitic speech. On the other hand, in the twenty-first-century United States, the dangers of hate speech pale in comparison to the dangers of suppressing it. Suppression drives haters underground, where they may be more dangerous than if they were more visible. Suppression is frequently not evenhanded: disparagement of some favored groups is punished, but disparagement of other groups is not. Frequently, suppression of hate speech is an expression of power wielded by some groups over other groups rather than an expression of concern about violence or discrimination. Sometimes, suppression of hate speech is just partisan politics. In the United States, some groups have tried to label messages such as opposition to racial preferences as racist hate speech. And political correctness surely infects enforcement of hate speech laws. Consider the prosecution of Mark Steyn in British Columbia because of his book expressing political concerns over *720 the ever-increasing percentage of Muslims in Europe. n23 So whether hate speech laws are a good or bad thing will undoubtedly vary with the country, its history, its culture, and its politics. The same point can be made with respect to restrictions on culture-coarsening expression - pornography, violent video games, public profanity, and so forth. Culture coarsening is a real harm, and its baleful effects may even prove catastrophic. On the other hand, whether legal restrictions on expression that contributes to coarsening is a good idea will vary with the place, the time, the institutions, the current state of the culture, and so forth. Governments are generally pretty ham-fisted when it comes to defining culture-coarsening messages. The history in the United States of attempts to ban pornography is not reassuring. Other countries with other institutions may do a better job.
79 -
80 -3. Censorship shuts down debate which increases intolerance and rights suppression. Lukianoff 14
81 -(Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate)
82 -In order for free speech to thrive, students need to experience on a regular basis how open discussion and debate and even random bits of comedy can increase tolerance and understanding more effectively than any speech code, residence hall initiative, or ideological “training” ever could. Modern universities are producing college graduates who lack that experience of uninhibited debate and casual provocation. As a result, our society is effectively unlearning liberty. This could have grave long-term consequences for all of our rights and the very cohesion of our nation. If too few citizens understand or believe in free speech, it is only a matter of time before politicians, activists, lawyers, and judges begin to curtail and restrict it, while other citizens quietly go along. Perhaps no one has summarized what is at stake more clearly than FIRE’s cofounder Alan Charles Kors: “A nation that does not educate in liberty will not long preserve it and will not even know when it is lost.”(11-12)
EntryDate
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1 -2017-03-04 16:35:26.0
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1 -Ruchi Agrawal
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1 -CL Education AY
ParentRound
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1 -16
Round
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1 -1
Team
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1 -Harvard Westlake Nayar Aff
Title
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1 -Chronicle AC V4
Tournament
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1 -USC
Caselist.RoundClass[9]
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1 -6
EntryDate
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1 -2016-11-06 20:02:46.0
Judge
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1 -Panny Shan
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Damus-Round3.docx
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1 -Brentwood LR
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1 -3
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1 -1AC militarism AC
2 -NC demilitarize CP CLS K
Tournament
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1 -Damus
Caselist.RoundClass[10]
EntryDate
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1 -2016-11-08 23:21:52.0
Judge
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1 -McHugh, Tim
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Damus-Round2.docx
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1 -Harker AC
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1 -2
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1 -1AC Police State
2 -1NC Congress CP
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1 -Damus
Caselist.RoundClass[11]
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1 -7
EntryDate
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1 -2016-11-08 23:23:49.0
Judge
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1 -McHugh, Tim
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Damus-Round2.docx
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1 -Harker AC
Round
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1 -2
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1 -1AC Police State
2 -1NC Congress CP
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1 -Damus
Caselist.RoundClass[12]
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1 -8
EntryDate
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1 -2016-11-19 17:37:03.0
Judge
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1 -Alderete, Tim
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Glenbrooks-Round2.docx
Opponent
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1 -Appleton East MM
Round
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1 -2
RoundReport
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1 -1AC Rule of Law
2 -NC Cap K Case
3 -NR Cap K
Tournament
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1 -Glenbrooks
Caselist.RoundClass[13]
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1 -9
EntryDate
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1 -2017-01-06 04:15:32.0
Judge
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1 -Shagun Kukreja, Bailey Rung
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Newark%20Round%20Robin-Round3.docx
Opponent
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1 -Dulles AW
Round
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1 -3
RoundReport
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1 -AC Chronicle AC
2 -NC Wynter Theory (defend whole rez)
3 -NR Theory
Tournament
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1 -Newark Round Robin
Caselist.RoundClass[14]
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1 -10
EntryDate
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1 -2017-01-07 00:55:45.0
Judge
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1 -Chippada, Preet
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Newark%20Invitational-Round1.docx
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1 -Harrison BS
Round
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1 -1
RoundReport
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1 -AC Chronicle
2 -NC Holocaust survivor PIC T any
3 -NR PIC
Tournament
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1 -Newark Invitational
Caselist.RoundClass[15]
Cites
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1 -11
EntryDate
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1 -2017-02-05 15:37:39.0
Judge
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1 -Matthew Leuvano
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-Golden%20Desert-Round2.docx
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1 -Harker EM
Round
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1 -2
RoundReport
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1 -AC - Chronicle
2 -NC - util NC Soft power DA title IX DA
3 -NR - title IX
Tournament
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1 -Golden Desert
Caselist.RoundClass[16]
Cites
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1 -12
EntryDate
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1 -2017-03-04 16:35:24.0
Judge
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1 -Ruchi Agrawal
OpenSource
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1 -https://hsld.debatecoaches.org/download/Harvard+Westlake/Nayar+Aff/Harvard%20Westlake-Nayar-Aff-USC-Round1.docx
Opponent
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1 -CL Education AY
Round
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1 -1
RoundReport
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1 -AC - Chronicle
2 -NC - settler colonialism
Tournament
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1 -USC
Caselist.CitesClass[5]
Cites
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1 +Part 1 is Framing
2 +The starting point of government deliberation has to be the individual and how they relate to the social world around them. Rules only gain their force if they are open to public criticism. This means we need a procedural democracy that transcends the exact content of any moral rule. . Adorno:
3 +
4 +Adorno, Theodor. “Education after Auschwitz,” Critical Model
5 +
6 +Since the possibility of changing the objective—namely societal and political— conditions is extremely limited today, attempts to work against the repetition of Auschwitz are necessarily restricted to the subjective dimension. By this I also mean essentially the psychology of people who do such things. I do not believe it would help much to appeal to eternal values, at which the very people who are prone to commit such atrocities would merely shrug their shoulders. I also do not believe that enlightenment about the positive qualities possessed by persecuted minorities would be of much use. The roots must be sought in the persecutors, not in the victims who are murdered under the paltriest of pretenses. What is necessary is what I once in this respect called the turn to the subject. One must come to know the mechanisms that render people capable of such deeds, must reveal these mechanisms to them, and strive, by awakening a general awareness of those mechanisms, to prevent people from becoming so again. It is not the victims who are guilty, not even in the sophistic and caricatured sense in which still today many like to construe it. Only those who unreflectingly vented their hate and aggression upon them are guilty. One must labor against this lack of reflection, must dissuade people from striking outward without reflecting upon themselves. The only education that has any sense at all is an education toward critical self-reflection. But since according to the findings of depth psychology, all personalities, even those who commit atrocities in later life, are formed in early childhood, education seeking to prevent the repetition must concentrate upon early childhood. I mentioned Freud’s thesis on discontent in culture. Yet the phenomenon extends even further than he understood it, above all, because the pressure of civilization he had observed has in the meantime multiplied to an unbearable degree. At the same time the explosive tendencies he first drew attention to have assumed a violence he could hardly have foreseen. The discontent in culture, however, also has its social dimension, which Freud did not overlook though he did not explore it concretely. One can speak of the claustrophobia of humanity in the administered world, of a feeling of being incarcerated in a thoroughly societalized, closely woven, netlike environment. The denser the weave, the more one wants to escape it, whereas it is precisely its close weave that prevents any escape. This intensifies the fury against civilization. The revolt against it is violent and irrational. A pattern that has been confirmed throughout the entire history of persecutions is that the fury against the weak chooses for its target especially those who are perceived as societally weak and at the same time—either rightly or wrongly—as happy. Sociologically, I would even venture to add that our society, while it integrates itself ever more, at the same time incubates tendencies toward disintegration. Lying just beneath the surface of an ordered, civilized life, these tendencies have progressed to an extreme degree. The pressure exerted by the prevailing universal upon everything particular, upon the individual people and the individual institutions, has a tendency to destroy the particular and the individual together with their power of resistance. With the loss of their identity and power of resistance, people also forfeit those qualities by virtue of which they are able to pit themselves against what at some moment might lure them again to commit atrocity. Perhaps they are hardly able to offer resistance when the established authorities once again give them the order, so long as it is in the name of some ideal in which they half or not at all believe. When I speak of education after Auschwitz, then, I mean two areas: first children’s education, especially in early childhood; then general enlightenment that provides an intellectual, cultural, and social climate in which a recurrence would no longer be possible, a climate, therefore, in which the motives that led to the horror would become relatively conscious. Naturally, I cannot presume to sketch out the plan of such an education even in rough outline. Yet I would like at least to indicate some of its nerve centers. Often, for instance, in America, the characteristic German trust in authority has been made responsible for National Socialism and even for Auschwitz. I consider this explanation too superficial, although here, as in many other European countries authoritarian behavior and blind authority persist much more tenaciously than one would gladly admit under the conditions of a formal democracy. Rather, one must accept that fascism and the terror it caused are connected with the fact that the old established authorities of the Kaiserreich decayed and were toppled, while the people psychologically were not yet ready for self-determination. They proved to be unequal to the freedom that fell into their laps. For this reason the authoritarian structures then adopted that destructive and, if I may put it so, insane dimension they did not have earlier, or at any rate had not revealed. If one considers how visits of potentates who no longer have any real political function induce outbreaks of ecstasy in entire populations, then one has good reason to suspect that the authoritarian potential even now is much stronger than one thinks. I wish, however, to emphasize especially that the recurrence or non-recurrence of fascism in its decisive aspect is not a question of psychology, but of society. I speak so much of the psychological only because the other, more essential aspects lie so far out of reach of the influence of education, if not of the intervention of individuals altogether. Very often well-meaning people, who don’t want it to happen again, invoke the concept of bonds. According to them, the fact that people no longer had any bonds is responsible for what took place. In fact, the loss of authority, one of the conditions of the sadistic-authoritarian horror, is connected with this state of affairs. To normal common sense it is plausible to appeal to bonds that check the sadistic, destructive, and ruinous impulse with an emphatic “You must not.” Nevertheless I consider it an illusion to think that the appeal to bonds—let alone the demand that everyone should again embrace social ties so that things will look up for the world and for people— would help in any serious way. One senses very quickly the untruth of bonds that are required only so that they produce a result—even if it be good—without the bonds being experienced by people as something substantial in themselves. It is surprising how swiftly even the most foolish and naive people react when it comes to detecting the weaknesses of their betters. The so-called bonds easily become either a ready badge of shared convictions—one enters into them to prove oneself a good citizen—or they produce spiteful resentment, psychologically the opposite of the purpose for which they were drummed up. They amount to heteronomy, a dependence on rules, on norms that cannot be justified by the individual’s own reason. What psychology calls the superego, the conscience, is replaced in the name of bonds by external, unbinding, and interchangeable authorities, as one could observe quite clearly in Germany after the collapse of the Third Reich. Yet the very willingness to connive with power and to submit outwardly to what is stronger, under the guise of a norm, is the attitude of the tormentors that should not arise again. It is for this reason that the advocacy of bonds is so fatal. People who adopt them more or less voluntarily are placed under a kind of permanent compulsion to obey orders. The single genuine power standing against the principle of Auschwitz is autonomy, if I might use the Kantian expression: the power of reflection, of self-determination, of not cooperating. I once had a very shocking experience: while on a cruise on Lake Constance I was reading a Baden newspaper, which carried a story about Sartre’s play Morts sans s ´epulchre, a play that depicts the most terrifying things.3 Apparently the play made the critic uneasy. But he did not explain this discontent as being caused by the horror of the subject matter, which is the horror of our world. Instead he twisted it so that, in comparison with a position like that of Sartre, who engages himself with the horror, we could maintain—almost maintain, I should say—an appreciation of the higher things: so that we could not acknowledge the senselessness of the horror. To the point: by means of noble existential cant the critic wanted to avoid confronting the horror. Herein lies, not least of all, the danger that the horror might recur, that people refuse to let it draw near and indeed even rebuke anyone who merely speaks of it, as though the speaker, if he does not temper things, were the guilty one, and not the perpetrators. With the problem of authority and barbarism I cannot help thinking of an idea that for the most part is hardly taken into account. It comes up in an observation in the book The SS State by Eugen Kogon, which contains central insights into the whole complex and which hasn’t come near to being absorbed by science and educational theory the way it deserves to be.4 Kogon says that the tormentors of the concentration camp where he spent years were for the most part young sons of farmers. The cultural difference between city and country, which still persists, is one of the conditions of the horror, though certainly neither the sole nor the most important one. Any arrogance toward the rural populace is far from my intentions. I know that one cannot help having grown up in a city or a village. I note only that probably debarbarization has been less successful in the open country than anywhere else. Even television and the other mass media probably have not much changed the state of those who have not completely kept up with the culture. It seems to me more correct to say this and to work against it than to praise sentimentally some special qualities of rural life that are threatening to disappear. I will go so far as to claim that one of the most important goals of education is the debarbarization of the countryside. This presupposes, however, a study of the conscious and unconscious of the population there. Above all, one must also consider the impact of modern mass media on a state of consciousness that has not yet come anywhere close to the state of bourgeois liberal culture of the nineteenth century. In order to change this state of consciousness, the normal primary school system, which has several problems in the rural environment, cannot suffice. I can envision a series of possibilities. One would be—I am improvising here—that television programs be planned with consideration of the nerve centers of this particular state of consciousness. Then I could imagine that something like mobile educational groups and convoys of volunteers could be formed, who would drive into the countryside and in discussions, courses, and supplementary instruction attempt to fill the most menacing gaps. I am not ignoring the fact that such people would make themselves liked only with great difficulty. But then a small circle of followers would form around them, and from there the educational program could perhaps spread further. However, there should arise no misunderstanding that the archaic tendency toward violence is also found in urban centers, especially in the larger ones. Regressive tendencies, that is, people with repressed sadistic traits, are produced everywhere today by the global evolution of society. Here I’d like to recall the twisted and pathological relation to the body that Horkheimer and I described in The Dialectic of Enlightenment. Everywhere where it is mutilated, consciousness is reflected back upon the body and the sphere of the corporeal in an unfree form that tends toward violence. One need only observe how, with a certain type of uneducated person, his language—above all when he feels faulted or reproached—becomes threatening, as if the linguistic gestures bespoke a physical violence barely kept under control. Here one must surely also study the role of sport, which has been insufficiently investigated by a critical social psychology. Sport is ambiguous. On the one hand, it can have an anti-barbaric and anti-sadistic effect by means of fair play, a spirit of chivalry, and consideration for the weak. On the other hand, in many of its varieties and practices it can promote aggression, brutality, and sadism, above all in people who do not expose themselves to the exertion and discipline required by sports but instead merely watch: that is, those who regularly shout from the sidelines. Such an ambiguity should be analyzed systematically. To the extent that education can exert an influence, the results should be applied to the life of sport. All this is more or less connected with the old authoritarian structure, with modes of behavior, I could almost say, of the good old authoritarian personality. But what Auschwitz produced, the characteristic personality types of the world of Auschwitz, presumably represents something new. On the one hand, those personality types epitomize the blind identification with the collective. On the other hand, they are fashioned in order to manipulate masses, collectives, as Himmler, H¨oss, and Eichmann did. I think the most important way to confront the danger of a recurrence is to work against the brute predominance of all collectives, to intensify the resistance to it by concentrating on the problem of collectivization. That is not as abstract as it sounds in view of the passion with which especially young and progressively minded people desire to integrate themselves into something or other. One could start with the suffering the collective first inflicts upon all the individuals it accepts. One has only to think of one’s own first experiences in school. One must fight against the type of folkways Volkssitten, initiation rites of all shapes, that inflict physical pain—often unbearable pain—upon a person as the price that must be paid in order to consider oneself a member, one of the collective.6 The evil of customs such as the Rauhn¨achte and the Haberfeldtreiben and whatever else such long-rooted practices might be called is a direct anticipation of National Socialist acts of violence.7 It is no coincidence that the Nazis glorified and cultivated such monstrosities in the name of “customs.” Science here has one of its most relevant tasks. It could vigorously redirect the tendencies of folk-studies Volkskunde that were enthusiastically appropriated by the Nazis in order to prevent the survival, at once brutal and ghostly, of these folk-pleasures. This entire sphere is animated by an alleged ideal that also plays a considerable role in the traditional education: the ideal of being hard. This ideal can also, ignominiously enough, invoke a remark of Nietzsche, although he truly meant something else.8 I remember how the dreadful Boger during the Auschwitz trial had an outburst that culminated in a panegyric to education instilling discipline through hardness. He thought hardness necessary to produce what he considered to be the correct type of person.9 This educational ideal of hardness, in which many may believe without reflecting about it, is utterly wrong. The idea that virility consists in the maximum degree of endurance long ago became a screen-image for masochism that, as psychology has demonstrated, aligns itself all too easily with sadism. Being hard, the vaunted quality education should inculcate, means absolute indifference toward pain as such. In this the distinction between one’s own pain and that of another is not so stringently maintained. Whoever is hard with himself earns the right to be hard with others as well and avenges himself for the pain whose manifestations he was not allowed to show and had to repress. This mechanism must be made conscious, just as an education must be promoted that no longer sets a premium on pain and the ability to endure pain. In other words: education must take seriously an idea in no wise unfamiliar to philosophy: that anxiety must not be repressed. When anxiety is not repressed, when one permits oneself to have, in fact, all the anxiety that this reality warrants, then precisely by doing that, much of the destructive effect of unconscious and displaced anxiety will probably disappear. People who blindly slot themselves into the collective already make themselves into something like inert material, extinguish themselves as self-determined beings. With this comes the willingness to treat others as an amorphous mass. I called those who behave in this way “the manipulative character” in the Authoritarian Personality, indeed at a time when the diary of H¨oss or the recordings of Eichmann were not yet known.10 My descriptions of the manipulative character date back to the last years of the Second World War. Sometimes social psychology and sociology are able to construct concepts that only later are empirically verified. The manipulative character—as anyone can confirm in the sources available about those Nazi leaders—is distinguished by a rage for organization, by the inability to have any immediate human experiences at all, by a certain lack of emotion, by an overvalued realism. At any cost he wants to conduct supposed, even if delusional, Realpolitik. He does not for one second think or wish that the world were any different than it is, he is obsessed by the desire of doing things Dinge zu tun, indifferent to the content of such action. He makes a cult of action, activity, of so-called efficiency as such which reappears in the advertising image of the active person. If my observations do not deceive me and if several sociological investigations permit generalization, then this type has become much more prevalent today than one would think. What at that time was exemplified in only a few Nazi monsters could be confirmed today in numerous people, for instance, in juvenile criminals, gang leaders, and the like, about whom one reads in the newspapers every day. If I had to reduce this type of manipulative character to a formula—perhaps one should not do it, but it could also contribute to understanding—then I would call it the type of reified consciousness. People of such a nature have, as it were, assimilated themselves to things. And then, when possible, they assimilate others to things. This is conveyed very precisely in the expression “to finish off” “fertigmachen”, just as popular in the world of juvenile rowdies as in the world of the Nazis. This expression defines people as finished or prepared things in a doubled sense. According to the insight of Max Horkheimer, torture is a manipulated and somewhat accelerated adaptation of people to collectives.11 There is something of this in the spirit of the age, though it has little to do with spirit. I merely cite the saying of Paul Val ´ery before the last war, that inhumanity has a great future.12 It is especially difficult to fight against it because those manipulative people, who actually are incapable of true experience, for that very reason manifest an unresponsiveness that associates them with certain mentally ill or psychotic characters, namely schizoids.
7 +Government action is about the process of deliberation not finding an exact rule to follow in every circumstance. Generation of values requires the ability to speak out. . Singer 84
8 +
9 +Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.
10 +
11 +Moreover, we cannot respond adequately to problems faced in life by¶ generating abstract moral categories. Discussion of moral and legal choices¶ must focus on the rich context in which those problems occur. For some¶ purposes, it may be useful to characterize two persons as "employer" and¶ "employee" and to develop generalizations to describe and govern their¶ relationships. But it is important to remember that these are real people¶ we are talking about, and when we describe them in this way for the¶ purpose of judging what their relations should be like, we are closing our-¶ selves off from their actual life experiences. We can think impersonally¶ about a busboy as simply representing the table-clearing function; or we¶ can describe him, say, as a forty-year-old man, recently divorced, with¶ back trouble and money problems. As Robert Gordon argues, we need "to¶ unfreeze the world as it appears to common sense as a bunch of more or¶ less objectively determined social relations and to make it appear as (we¶ believe) it really is: people acting, imagining, rationalizing, justifying."'179¶ It may indeed be useful to develop general models to describe social life.¶ But when it comes time to make decisions, we should recognize that we¶ are making decisions rather than discovering ourselves. In making those¶ decisions, it is right to focus on the particular social context, to decide¶ whether our descriptive model actually applies in that case and whether¶ we are allowing the model to turn our attention away from facts that we¶ would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding¶ how to characterize situations, and in deliberating, conversing, intro-¶ specting, and judging.180 Expressive theory also emphasizes the communal¶ nature of theory and its complex relations with social life. The kernel of¶ truth in the idea of rational consensus is that all ideas and actions involve¶ relations among people. "Individuals do not simply 'have' opinions, they¶ form opinions. . . . The formation of opinions is not a private activity¶ performed by a solitary thinker."'' Traditional theorists have reified the¶ idea of rational consensus by treating it as a basis for what we do, as a¶ source of answers, as a generator of outcomes. But consensus, if it exists,¶ is not something that just happens to be there, that we could describe¶ accurately. It must be created, and the work of creating it is the work and¶ play of daily life, of living, contending, sharing, and being with other peo-¶ ple. Like law, consensus must be made, not found.182¶ Emphasis on the creative, communal nature of common understanding¶ creates an appropriate relationship between thought and action. The proc-¶ ess of generating values is something we do with others in the context of¶ relationships that continue over time.¶ Democratic politics is an encounter among people with differing in-¶ terests, perspectives, and opinions-an encounter in which they re-¶ consider and mutually revise opinions and interests, both individual¶ and common. It happens always in a context of conflict, imperfect¶ knowledge, and uncertainty, but where community action is neces-¶ sary. The resolutions achieved are always more or less temporary,¶ subject to reconsideration, and rarely unanimous. What matters is¶ not unanimity but discourse. The substantive common interest is¶ only discovered or created in democratic political struggle, and it re-¶ mains contested as much as shared. Far from being inimical to de-¶ mocracy, conflict-handled in democratic ways, with openness and¶ persuasion-is what makes democracy work, what makes for the¶ mutual revision of opinions and interest.'83¶ Legal theory can help create communal ties and shared values by freeing¶ us from the sense that current practices and doctrines are natural and¶ necessary and by suggesting new forms of expression to replace outworn¶ ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our¶ focus from viewing individuals as abstract citizens whose relations to each¶ other are governed by rights enforced by the state to viewing them as¶ active participants in shaping their relations in daily life. Such changes in¶ language may help focus our attention on facts we had previously ignored¶ and make us more keenly aware of alternative social arrangements.'85
12 +
13 +The law can either be used to forward the claims of the powerless or to perpetuate those of the powerful. We embrace a system of politics that allows for the powerless to speak out. Balkin 08
14 +
15 +Balkin, Jack M. "Critical legal theory today." (2008).
16 +
17 +The relative autonomy of law from politics – rather than its complete¶ autonomy – simultaneously poses a threat and a promise. The threat is that law¶ will fail to do much more than ratify and legitimate the interests of the powerful;¶ the promise is that it might hold off the worst excesses of power by giving people¶ discursive and institutional tools to talk back to power, to restrain its selfishness¶ and inhumanity, and to imagine finer, better visions of human association.¶ The threat and the promise of law are joined together inseparably. What¶ gives law its power to legitimate is its ability to re-describe unjust and unfair¶ events, social practices and institutions in terms of valued ideals of human¶ association like consent, freedom, dignity, equality and fairness. In the hands of¶ lawyers and politicians, law can disguise, mystify and legitimate great injustices¶ using the very ideas and ideals we admire. But law can only do this because it¶ appeals to these values and claims to try to put them into practice through law.¶ Recourse to law forces the powerful to talk in terms in which the powerless can¶ also participate and can also make claims.¶ From this standpoint, law is not simply an efficient tool of power that¶ powerful people and powerful groups can wield any way they like. They do not¶ merely shape the world with it; rather it shapes them and their world, because¶ they have bought into law as a means of achieving and wielding power. Law¶ shapes their beliefs and desires, their sense of the appropriate and the¶ inappropriate, their conceptions of the possible and impossible. Law generates its¶ own institutions and its own demands; it creates its own culture, it is its own form¶ of life; it struggles with other forms of knowledge and power for dominance.¶ That struggle might lead to yet another form of professional power displacing older ones. But it might offer a space for something far more beneficial and¶ noble.¶ The critical approach to law—or at any rate, my version of it—has always¶ been doubled, has always reflected the Janus word “legitimate.” On the one hand,¶ powerful people have used law to subordinate others and secure their own¶ interests under the guise of promoting laudable goals like freedom, equality,¶ liberty, consent, community and human dignity. On the other hand, by choosing¶ to speak in the language of law, powerful people and interests can sometimes be¶ called to account because they try to legitimate what they are doing in those¶ terms. The people they take advantage of can argue that this is a misuse of law,¶ an illegitimate attempt at mystifying rhetoric. They can appeal to the values that¶ law seeks to protect to promote better, more just, and more humane practices and¶ forms of human association.¶ Important theoretical debates among critical scholars in the 1970s and¶ 1980s period revolved around which conception of law was the best one. Some¶ critical scholars adopted a largely pejorative conception, focusing primarily on¶ law’s defects. They argued that the rule of law was enmeshed in irreconcilable¶ contradictions; they denounced rights talk as sterile, useless and¶ counterproductive.5¶ Others, especially feminist and critical race theory scholars,¶ pointed out that rights discourse and rule of law values were among the few¶ resources that disempowered people had.6¶ Rule of law and rights talk were¶ potentially emancipatory discourses. They held a limited but important potential¶ for liberation and for contesting the arbitrary and unjust use of power.¶ These feminist and critical race theorists understood the deemphasized elements – the other side – of critical claims about the relative autonomy of law.¶ They well recognized that rule of law values and rights discourse were hardly¶ perfect – after all, they had been used repeatedly to justify slavery and the¶ subordination of women – but that they had also allowed people to speak out¶ against and to restrain the worst excesses of power. Even in a period of deep¶ skepticism and disillusionment about what law could do, these critical scholars¶ retained a sense of the political importance of rule of law values and rights¶ discourse. That is not because they believed in a strict autonomy of law from¶ politics, but because they understood the political values that legal culture and¶ rights discourse might serve. The best version of critical theory, I think, employs an ambivalent¶ conception of law rather than a pejorative conception: it recognizes law’s relative¶ autonomy from other forms of power in social life, and it understands the dual or¶ Janus-faced nature of that relative autonomy. It sees both law’s limitations in the¶ face of power and its possibilities as a means of channeling power and preventing¶ its most serious injustices.
18 +
19 +Part 2 – The Police State
20 +Qualified immunity reflects a culture of policing that justifies terrorizing black neighborhoods and lets police know they can get away with anything. Carter ‘15
21 +Tom Carter – WSWS Legal Correspondent, a lawyer (https://www.wsws.org/en/articles/2014/02/24/cart-f24.html). “US Supreme Court Expands Immunity for Killer Cops.” Center for Research on Globalization. November 12, 2015. http://www.globalresearch.ca/us-supreme-court-expands-immunity-for-killer-cops/5488366 JJN
22 +When a civil rights case is summarily dismissed by a judge on the grounds of “qualified immunity,” the case is legally terminated. It never goes to trial before a jury and is never decided on its constitutional merits. In March of 2010, Texas Department of Public Safety Trooper Chadrin Mullenix climbed onto an overpass with a rifle and, disobeying a direct order from his supervisor, fired six shots at a vehicle that the police were pursuing. Mullenix was not in any danger, and his supervisor had told him to wait until other officers tried to stop the car using spike strips. Four shots struck Israel Leija, Jr., killing him and causing the car, which was going 85 miles per hour, to crash. After the shooting, Mullenix boasted to his supervisor, “How’s that for proactive?” The Luna v. Mullenix case was filed by Leija’s family members, who claimed that Mullenix used excessive force in violation of the Fourth Amendment, part of the Bill of Rights. The district court that originally heard the case, together with the Fifth Circuit Court of Appeals, denied immunity to Mullenix on the grounds that his conduct violated clearly established law. The Supreme Court intervened to uphold the Mullenix’s entitlement to immunity—a decision that will set a precedent for the summary dismissal of civil rights lawsuits against police brutality around the country. This is the Supreme Court’s response to the ongoing wave of police mayhem and murder. The message is clear: The killings will continue. Do not question the police. If you disobey the police, you forfeit your life. So far this year, more than 1,000 people have been killed by the police in America. Almost every day, there are new videos posted online showing police shootings, intrusions into homes and cars, asphyxiations, beatings and taserings. Last week, two police officers in Louisiana opened fire on Jeremy Mardis, a six-year-old autistic boy, and his father Chris Few. The boy’s father had his hands up during the shooting and is currently hospitalized with serious injuries. His son succumbed to the police bullets while still buckled into the front seat of the car. The Supreme Court’s decision reflects the fact that in the face of rising popular anger over police killings, the entire political apparatus—including all of the branches of government—is closing ranks behind the police. This includes the establishment media, which has largely remained silent about Monday’s pro-police Supreme Court decision. The police operate with almost total impunity, confident that no matter what they do, they will have the backing of the state. Two weeks ago, a South Carolina grand jury refused to return an indictment against the officer who was caught on video killing 19-year-old Zachary Hammond. This follows the exoneration of the police who killed Michael Brown in Ferguson, Missouri, Eric Garner in New York City and Tamir Rice in Cleveland. The Obama administration’s position regarding the surge of police violence was most clearly and simply articulated by FBI director James Comey in aspeech on October 23. “May God protect our cops,” Comey declared. He went on to accuse those who film the police of promoting violent crime. Meanwhile, in virtually every police brutality case that has come before the federal courts, the Obama administration has taken the side of the police. On Monday, the Supreme Court went out of its way to cite approvingly anamicus curiae (friend of court) brief filed by the National Association of Police Organizations (NAPO), which defended Mullenix. With this citation, notwithstanding its ostensible role as a neutral arbiter and guarantor of the Constitution, the Supreme Court sent a clear signal as to which side it is on. During the imposition of de facto martial law in Ferguson last year, NAPO issued statements vociferously defending Michael Brown’s killer, labeling demonstrators as “violent outsiders,” and denouncing “the violent idiots on the street chanting ‘time to kill a cop!’” “Qualified immunity” is a reactionary doctrine invented by judges in the later part of the 20th century to shield public officials from lawsuits. As a practical matter, this doctrine allows judges to toss out civil rights cases without a jury trial if, in the judge’s opinion, the official misconduct in question was not “plainly incompetent” or a “knowing violation of clearly established law.” Over recent decades, the doctrine has been stretched to Kafkaesque proportions to shield police officers from accountability. In the landmark case ofTennessee v. Garner (1985), the Supreme Court held that it violates the Constitution to shoot an “unarmed, nondangerous fleeing suspect,” and required an imminent threat of death or serious bodily injury before the police could open fire. But the Supreme Court in its decision on Monday dismissed this language as constituting a “high level of generality” that was not “particular” enough to “clearly establish” any particular constitutional rights. Since cases that are dismissed on the grounds of qualified immunity do not result in decisions on the constitutional issues, this circular pseudo-logic ensures that no rights will ever be “clearly established.” It also ensures that, instead of the democratic procedure of a jury trial, cases involving the police will be decided by judges. The Supreme Court issued Monday’s decision without full briefing or oral argument, designating it “per curiam,” i.e., in the name of the court, not any specific judges. Justice Antonin Scalia filed a concurring opinion, displaying his trademark sophistry. According to Scalia, Mullenix did not use “deadly force” within the meaning of the Supreme Court’s prior cases, since he was shooting at a car, not a person. (Four bullets struck Leija, but none of the six shots struck the engine block at which Mullenix was supposedly aiming.) Justice Sonia Sotomayor filed the sole dissent, noting that this decision “renders the protections of the Fourth Amendment hollow,” and sanctions a “shoot first, think later” approach to policing. However, Sotomayor wrote that she would have used a “balancing” analysis instead, in which a “particular government interest” would need to be “balanced” against the use of deadly force. This “balancing” rhetoric mirrors the Obama administration’s justifications for assassination and domestic spying, according to which national security is balanced against democratic rights. The Bill of Rights itself—that old, yellow, forgotten piece of paper—does not make itself contingent on the subjective mental states of police officers, “clearly established law,” or the “balancing” of “government interests.” America confronts a massive social crisis. Decades of endless war and occupations abroad, the degradation of wages and living conditions at home, the enrichment of a tiny layer of financial criminals at the expense of the rest of the society, rampant speculation and corruption at the highest levels—these factors contribute to mounting social tensions and the danger, from the standpoint of the ruling class, of the growth of social opposition. Such opposition can already be seen, in its earliest stages, in the struggle by autoworkers against the sellout contract being imposed by the United Auto Workers union. Like the tyrant who proposes to solve the problem of hunger by imposing a hefty fine on everyone who starves, the Supreme Court’s decision Monday confirms that the entire social system has nothing to offer by way of a solution to the crisis except more of the same. The abrogation of democratic rights, torture, military commissions, drone assassinations, unlimited surveillance, the lockdown of entire cities, internment camps, beatings, murder, martial law, war—this is how the ruling class plans to deal with the social crisis. Notwithstanding the epidemic of police violence, the flow of unlimited cash and military hardware to police departments from the Department of Homeland Security and the Pentagon continues unabated. The buildup of the police as a militarized occupation force operating outside the law, pumped up and ready to kill, must be seen as a part of preparations by the ruling class for mass repression and dictatorship in response to the growth of working class opposition.
23 +
24 +Qualified immunity makes questions of civil rights irrelevant. It shuts down democratic debates about which rights we should value and prevents forms of activism that fight for legal recognition. Hassel ‘99
25 +
26 +Diana Hassel - Associate Professor, Roger Williams University School of Law. B.A. 1979, Mount Holyoke College; J.D. 1985, Rutgers, the State University of New JerseyNewark. “Living a Lie: The Cost of Qualified Immunity.” Missouri Law Review. Winter 1999. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402andcontext=mlr JJN
27 +
28 +IV. THE COST OF QUALIFIED IMMUNITY Qualified immunity has not been universally admired. A large body of literature critiques the defense and calls for its modification, elimination, or expansion. While these critiques serve to illuminate some fundamental problems with the qualified immunity doctrine, they do not address the central problem with qualified immunity-its camouflaging effect. By camouflaging effect, I mean the ability of qualified immunity to make the underlying pattern of civil. rights doctrine undiscernible. The existing critical focus on the strengths and weaknesses of qualified immunity fails to uncover the underlying patterns in the availability of Section 1983 remedies. A. Current Critiques There are vociferous critics of the qualified immunity doctrine who attack the doctrine as a whole. This commentary suggests that the problem with the qualified immunity doctrine is that it is applied to the wrong group of defendants or that it should be eliminated entirely. Those who believe that it should be eliminated entirely generally seek to substitute governmental liability for that of individual government officials. 6 Others believe that the problem is not with the defense but that its application should be available only to a certain small group of government officials." 7 The bulk of the criticism of qualified immunity looks closely at the structure of the defense and argues that it is internally contradictory or should be modified to provide better results. This criticism breaks into two main areas: the problems inherent in the "reasonableness" element". of the qualified immunity defense and the difficulties that result from the attempt to define "clearly established""' 9 law. The complaints concerning the "reasonableness" element note that while the objective reasonableness element is designed to protect the defendant from protracted litigation, the defense does not really quickly resolve a lawsuit. 120 The fact issues raised by the reasonableness element of the defense require a fact-finding hearing which makes it difficult to end lawsuits prior to trial.' 2 ' In a contradictory approach, the objectively reasonable element also has been described as being essentially a bar to judgment for the plaintiff in a civil rights action. Because qualified immunity is designed to protect defendants notjust from liability, but from participation in litigation, some argue that qualified immunity has become essentially indistinguishable from absolute immunity.' 22 The objectively reasonable standard is also seen as a mechanism for the distortion of constitutional law. The focus on the question of what a reasonable official would have understood the law to require leads to a "redefining of the substantive constitutional law" in a way that gives little clear guidance as to what the constitution requires and thus provides little guidance for future actions.'23 Commentators similarly claim that the impact of the clearly established element of the qualified immunity defense is inefficient, distorts the law, and is too difficult a standard for plaintiffs to overcome. It is inefficient and distorting because courts spend their time reconstructing what the law was in the past rather than setting forth clear guidance as to what the law requires. 124 The qualified immunity defense has also been assailed because of its requirement that a constitutional right must be clearly established before any liability can attach. This is a difficult standard to overcome. 2 ' The difficulty in identifying clear legal authority establishing the unlawfulness of a particular official's act may be too difficult a task and thus exclude meritorious claims. 26 There is then a body of literature examining the discrepancy between what the qualified immunity defense was meant to accomplish and how it actually works. The defense does not protect defendants in a meaningful way. At the same time, it makes a judgment for the plaintiff almost impossible to obtain. Therefore, the defense seems to be serving no one's interests. These well documented weaknesses suggest that qualified immunity's role is not to allow for just outcomes, but to provide some other service. What is missing from these critiques is an analysis of what function the current doctrine serves. In the next section, I explain that while qualified immunity often results in unfairness or inefficiency, the doctrine also provides a flexible mechanism by which divisive issues are seemingly resolved. This mechanism, however, has a cost. B. Qualified Immunity as a Disquise The problem with qualified immunity is not so much that the outcomes are sometimes unfair but the fact that qualified immunity blocks a clear view of the real limitations that exist in civil rights law. Civil rights law is, in effect, being designed in the dark. Distinctions are being made about the types of cases that will receive compensation and the types that will not. These distinctions are not articulated as such; instead, the results are understood to be the result of the qualified immunity defense. As we have seen, for example, a procedural complaint in the context of an employment dispute is more likely to survive the qualified immunity defense than is a complaint about whether a police officer used excessive force in the arrest of a dangerous suspect. Rather than organizing civil rights law in these categorical ways, however, qualified immunity makes the civil rights remedial system appear to be about individual cases and the reasonableness of individual defendants. Current qualified immunity doctrine serves as a means to diffuse conflict. Without a clear rule that some kinds of civil rights harms will not be redressed, there is minimal pressure for change. This "hiding of the ball" quality of qualified immunity is why, in spite of many expressions of dissatisfaction with the system, there had been little effective rallying for change. The reason the discontent of the participants in this system has not led to a significant change is that the terms of the debate are defined by the immunity system rather than by the fundamental question of the extent of rights and liabilities in civil rights actions. The civil rights remedial scheme organized around qualified immunity thus has an inherently self-preserving or stabilizing quality. It allows for tinkering at the margins, but fundamental recasting of the terms of the debate is unlikely. My assertion that qualified immunity has a camouflaging effect on civil rights law is supported by a large body of scholarship that explores legal regimes that define reality in a way that limits the ability of the participants in the system to change it.'27 These scholars argue that when a legal system is accepted as being the only available way to organize an activity and thus seems inevitable, the legal system encourages acceptance of the status quo. 28 The insights gained by scholars working in this area are helpful to apply to the qualified immunity standard in order to explore its hold on the civil rights imagination. This analysis maps out the way a doctrine such as qualified immunity can develop into an obstacle to the very aims it professes to accomplish. Particularly apposite to an analysis of civil rights law is the work that has been done on the change-inhibiting impact of the development of antidiscrimination law.129 In commenting on the effect of the adoption of equal rights rhetoric on the struggle to end racial inequality, Kimberle Crenshaw has concluded that "society's adoption of the ambivalent rhetoric of equal opportunity law has made it that much more difficult for Black people to name their reality. While equal employment opportunity law has been adopted, the material reality of most Black people has not improved."'30 In fact, improvement may be hindered by the existence of the equal opportunity law since it may undermine the political consensus necessary for change.' 3 ' Another commentator has suggested that "the language of rights undermines efforts to change things by absorbing real demands, experiences, and concerns into a vacuous and indeterminate discourse. The discourse abstracts real experience and clouds the ability of those who invoke rights rhetoric to think concretely about real confrontations and real circumstances.' 32 The existence of antidiscrimination law can thus create the appearance of improvements in racial equality while at the same time not encouraging fundamental change. 33 The focus on the intent of the actor in equal protection claims rather than the impact on the person experiencing the discrimination has also been criticized as an inhibitor to the elimination of racial inequality. 3 By paying exclusive attention to the blameworthiness of the defendant, an examination of the impact of the challenged practice on those complaining about it is lost. Fairness to the defendant, rather than eliminating discriminatory effect, is the central concern. These commentators suggest that the economic and social reality of race inequality is obscured by the existence of antidiscrimination law and by the success of a small exceptional group. As Derrick Bell has stated, "Discrimination claims when they are dramatic enough and do not threaten majority concerns, are given a sympathetic hearing, but there is a pervasive sense that definite limits have been set on the weight that minority claims receive when balanced against majority interests."'35 While it is unclear what the alternative to antidiscrimination law is, these critiques strongly argue that antidiscrimination law does not do what it suggests it will do and may, in fact, make a better system more difficult to imagine and thus to create. This current critique of antidiscrmination law can be used to understand how the qualified immunity standard affects the system of compensation for constitutional wrongs. One major similarity is the way in which the existence of Section 1983 siphons off pressure to create some other system of redress. The open-ended language of the Section 1983 statute seems to promise a powerful remedy against governmental abuse. As we have seen, qualified immunity severely limits that remedy, but on a case-by-case basis. There is no general prohibition against certain types of civil rights claims, only the seemingly individualized application of the qualified immunity defense. The fact that some types of claims are destined to fail because of the type of claim they are, not because of the particularized behavior of the defendant, is hidden. Adding to the illusion of a generally available remedy is the spectacular success of a few high profile cases. A few large recoveries in cases that present particularly compelling facts obscure the reality of the fruitlessness of most claims. 36 On the other side of the lawsuit, qualified immunity promises much more to the defendant than it delivers. The defense is supposed to protect government actors not only from liability but also from entanglement with litigation. The promise is often not kept because the qualified immunity defense presents a combination of fact and law questions that cannot be quickly disposed of prior to trial. However, the theoretical protection offered by the defense and the low incidence of actual judgments against government actors lulls government employees into acquiescence to the system. The emphasis that qualified immunity places on the reasonableness of the defendant's actions rather than on whether a constitutional right was violated is another way in which qualified immunity distorts civil rights law. Qualified immunity makes the essential issue of a civil rights claim the question of whether it would be too much of an inhibitor of government action to require a particular defendant to pay damages to the plaintiff. The focus is not, at least initially, on whether the plaintiffs constitutional rights were violated. This emphasis also makes it difficult to discern and consider which rights are or should be protected and which we are content not to protect with monetary compensation. Qualified immunity's harm is that it makes it difficult to see the policy choices made by courts in civil rights actions. Cloaking these policy choices in the qualified immunity doctrine avoids the possibility of an open debate concerning which civil rights should be protected and how. VI. CONCLUSION Given its obvious flaws, the continuation of qualified immunity as the key legal issue in civil rights cases can only be explained by the hidden purpose it serves; it avoids the divisive and perhaps unresolvable conflicts among participants in civil rights litigation. Qualified immunity accomplishes this conflict-avoiding function by giving judges wide latitude in making determinations about its application and by couching the outcomes of civil rights litigation in terms that make the substantive results difficult to perceive. These qualities account for the faithful adherence to a doctrine that is regarded as so unsatisfactory to so many. The problem with this conflict avoidance mechanism is that it allows unarticulated decisions to be made about the extent of liability for civil rights violations. Civil rights litigation does have limitations to it; every case is not given an opportunity to succeed. These determinations are being made; they are just not described as such. Using qualified immunity as a shield from the truth may buy us peace, but it keeps from us the tools required for reform.
29 +
30 +Part 3 - The plan
31 +Plan Text: In all cases in which a police officer is a named defendant against an accusation of violating the 4th amendment by excessive force, the SCOTUS will strike down the "clearly established" and "reasonable officer" clauses in Harlow. Wright ‘15
32 +Sam Wright is a public interest lawyer who has spent his career exclusively in nonprofits and government. “Want to Fight Police Misconduct? Reform Qualified Immunity.” Above the Law. November 3, 2015. http://abovethelaw.com/2015/11/want-to-fight-police-misconduct-reform-qualified-immunity/?rf=1 JJN
33 +As usual, I’ve not buried the lede: that something is qualified immunity reform. In order to truly hold police accountable for bad acts, civilians must be able to bring, and win, civil rights suits themselves — not rely on the Department of Justice, or special prosecutors, or civilian review boards to hold officers accountable. And in order to both bring and win civil rights suits, civilians need a level playing field in court. Right now, they don’t have one. Instead, police officers have recourse to the broad protections of the judicially established doctrine of qualified immunity. Under this doctrine, state actors are protected from suit even if they’ve violated the law by, say, using excessive force, or performing an unwarranted body cavity search — as long as their violation was not one of “clearly established law of which a reasonable officer would be aware.” In other words, if there’s not already a case where a court has held that an officer’s identical or near-identical conduct rose to the level of a constitutional violation, there’s a good chance that even an obviously malfeasant officer will avoid liability — will avoid accountability. To bring about true accountability and change police behavior, this needs to change. And change should begin with an act of Congress rolling back qualified immunity. Removing the “clearly established” element of qualified immunity would be a good start — after all, shouldn’t it be enough to deviate from a basic standard of care, to engage in conduct that a reasonable officer would know is illegal, without having to show that that conduct’s illegality has already been clearly established in the courts?
34 +
35 +Excessive force is the worst manifestation of this form of structural violence – 4th amendment cases get shut down before they even have a chance. Jeffries ‘13
36 +Jeffries Jr, John C - David and Mary Harrison Distinguished Professor of Law, the University of Virginia. "The Liability Rule for Constitutional Torts." Virginia Law Review (2013): 207-270.
37 +Finally, special mention must be made of the case of excessive force.¶ The unconstitutional use of excessive force presents the most glaring¶ case of the inadequacy of current law. To some extent, that reflects the¶ intractability of the underlying problem of persuading officers who may¶ be excited, adrenalin-rushed, and fearful to be more restrained in the use¶ of force, especially deadly force. The intersection of qualified immunity¶ and excessive force claims raises in a particularly troubling context an¶ issue that can be put more generally: what role should qualified immunity¶ play for rights defined in terms of reasonableness? The question was¶ first raised by Justice Stevens in his dissent in Anderson,¶ 217 where the¶ majority applied qualified immunity to an unlawful search. Justice Stevens¶ objected to what he called a “double standard of reasonableness.”218¶ Since the Fourth Amendment forbids only “unreasonable” searches and¶ seizures, he argued, extending qualified immunity to invasions found to¶ violate that standard introduced “two layers of insulation from liability” and led to a logical contradiction: “I remain convinced that in a suit for¶ damages as well as in a hearing on a motion to suppress evidence, ‘an¶ official search and seizure cannot be both “unreasonable” and “reasonable”¶ at the same time.’”219 Since allowance for reasonable error was already¶ built into the definition of the constitutional right, Stevens argued,¶ allowing the officers to claim qualified immunity unjustifiably gave¶ them “two bites at the apple.”220 Writing for the majority, Justice Scalia¶ rejected the “‘reasonably unreasonable’ argument” as little more than a¶ play on words.221 The fact that Fourth Amendment doctrine (including¶ the warrant requirement and the specification of exigent circumstances)¶ had developed under the rubric of “unreasonable searches and seizures”¶ did not mean that one could not be reasonably mistaken about specific¶ questions. Application of qualified immunity to Fourth Amendment protections¶ was in principle no different from its application to any other¶ constitutional guarantee.¶ Logically, Scalia is right. The phrasing of the Fourth Amendment¶ does not preclude the possibility of reasonable mistake. On any of the¶ component issues of Fourth Amendment doctrine (probable cause, exigent¶ circumstances, and the like), an officer could be reasonably mistaken¶ about whether his or her conduct violated clearly established law.¶ Analytically, there is no conceptual contradiction in applying qualified¶ immunity to the Fourth Amendment. At a deeper level, however, Stevens has a point. That point arises not¶ from the fact that the Fourth Amendment uses the term “unreasonable”¶ but rather from the construction of a constitutional standard that seemingly¶ encompasses within its terms all possibility of reasonable mistake.¶ The archetype of such a standard, however, is not ordinary search and¶ seizure but the constitutional prohibition against excessive force.¶ The Supreme Court has said in Graham v. Connor that claims of excessive¶ force should be analyzed under the Fourth Amendment and that¶ the test is one of “objective reasonableness.”222 This label might suggest a standard that is cut-and-dried, but in fact it is highly variable and particular.¶ Factors such as the severity of the suspected crime and whether¶ the suspect is actively resisting arrest are not to be assessed “with the¶ 20/20 vision of hindsight” but from the perspective of the officer on the¶ scene, with limited time and information and under conditions of emergency.223¶ As the Court put it, “The calculus of reasonableness must embody¶ allowance for the fact that police officers are often forced to make¶ split-second judgments—in circumstances that are tense, uncertain, and¶ rapidly evolving—about the amount of force that is necessary in a particular¶ situation.”224 The result is a general concept, unmediated by specific¶ implementing rules or doctrines, that takes all relevant circumstances¶ into account. All the mistakes that an officer might make—such¶ as misidentifying the suspect or erroneously thinking him armed or¶ overestimating the risk of civil disorder if a loud-mouth is not subdued—are¶ subsumed within the constitutional standard, so long as those¶ mistakes are reasonable. To find a violation of the constitutional standard,¶ the court or jury must conclude that, taking into account all the circumstances¶ that might excuse misjudgment, the use of force was unreasonable.¶ To then say that the unreasonable use of force might¶ nevertheless be reasonable is indeed puzzling.¶ The Supreme Court (per Justice Kennedy) explained the matter as follows:¶ It is sometimes difficult for an officer to determine how the relevant¶ legal doctrine, here excessive force, will apply to the factual situation¶ the officer confronts. An officer might correctly perceive all of the¶ relevant facts but have a mistaken understanding as to whether a particular¶ amount of force is legal in those circumstances. If the officer’s¶ mistake as to what the law requires is reasonable, however, the officer¶ is entitled to the qualified immunity defense.225¶ This statement is confusing and has worked much mischief, but it is not¶ analytically unsound. The confusion arises from trying to imagine how a reasonable officer could be mistaken about the “relevant legal doctrine”¶ when it consists only of the injunction that the use of force be reasonable.¶ Every officer would know that, and not knowing it would itself be¶ unreasonable. It is nevertheless true that an officer on the scene and a¶ subsequent trier of fact might evaluate the reasonable use of force (from¶ the perspective of the officer on the scene, etc.) differently. In that case,¶ one might say, with the Supreme Court, that the officer would have a¶ “mistaken understanding as to whether a particular amount of force is¶ legal” and that if the officer’s misjudgment of that issue were very¶ slight, it might be deemed reasonable.226 By this reasoning, qualified¶ immunity would still have some role to play in borderline applications¶ of a constitutional standard based entirely on reasonableness.¶ An alternative understanding—which seems to me the better understanding—would¶ treat the trier of fact’s evaluation as conclusive of reasonableness,¶ as is done for example in negligence cases. Conceptually,¶ the difference between these approaches lies in whether one conceives¶ of the officer as trying to anticipate the judgment of a trier of fact (in¶ which case a borderline error might be deemed reasonable) or as trying¶ to adhere to the underlying standard governing both officer and trier of¶ fact (in which case the latter’s determination would be conclusive). The¶ latter characterization seems more appropriate in this context and is certainly¶ more straightforward, but the former characterization is more consistent¶ with the overall structure of qualified immunity, which traditionally¶ focuses on mistake as to legality.¶ Whatever view one takes of this matter, it seems plain that qualified¶ immunity would impart only a very slight addition to the protections¶ built into the constitutional standard for excessive force. Given that reasonable¶ mistakes and misjudgments preclude finding a constitutional violation¶ in the first place, it is hard to see much room for the operation of¶ qualified immunity. At most, it would add a very narrow zone of additional¶ protection in truly borderline cases.¶ This is not, however, the lesson of the cases. Courts have been told¶ that qualified immunity applies to claims of excessive force, that reasonable¶ mistakes in light of “clearly established” law should trigger qualified¶ immunity despite the “objective unreasonableness” of the actor’s¶ conduct, and that “clearly established” law depends on similar precedent.¶ This cumulation of messages, powerfully reinforced by Brosseau v. Haugen,¶ 227 has led many lower courts to reject civil liability for excessive¶ force in circumstances where such liability seems fully justified. As¶ usual, the culprit is the unlikelihood of finding another excessive-force¶ case in that jurisdiction with sufficiently similar facts.
38 +
39 +The AFF changes police behavior – lawsuits are used by departments to create reform and individuals know their behavior will be watched – they don’t’ even need to win the lawsuits. Schwartz 10
40 +Schwartz, Joanna. "What Police Learn from Lawsuits." Cardozo Law Review, 2010. http://law.stanford.edu/wp-content/uploads/sites/default/files/event/265497/media/slspublic/What_Police_Learn_From_Lawsuits.pdf. SGK
41 +Lawsuits are widely recognized to compensate and deter; this Article shows suits can also inform. In the departments in this study, lawsuits reveal allegations of misconduct that officials investigate and consider with other data for possible trends. The evidence developed in discovery and trial offers a detailed picture of underlying events that can help identify personnel and policy failures. Closed case files, compared with internal investigations, reveal weaknesses in internal procedures. And trends in settlements and judgments, like initial claim trends, highlight units that officials should more carefully review. Viewed in isolation or in conjunction with other data, lawsuits offer insights about the incidence and causes of individual and organizational failings. And armed with these insights, departments find ways to improve. This view of litigation – as a source of information that can be used to identify and reduce harm and error – parts company with prevailing understand- ings of lawsuits’ role in organizational performance improvement. In the standard story, lawsuits’ financial costs are expected to deter misbehavior.242 Others contend that police officials will be deterred by lawsuits only when the suits jeopardize political capital, bureaucratic and administrative needs, or crime control efforts.243 But all expect that it is lawsuits’ punitive effects that inspire performance improvement. High profile and costly cases can, most certainly, affect change in law enforcement. Indeed, several of the departments in this study began reviewing lawsuit data as a response to significant political and financial pressures.244 But these departments do not limit their attention to cases that garner high payouts or press attention. Instead, they gather information about legal claims, evidence, and dispositions of all cases, even those without financial and political ramifications.
42 +
43 +The AFF changes culture – it is a form of social condemnation that validates the claims of the survivor. Armacost 98
44 +Armacost 98 Barbara Armacost, Vanderbilt Law Review, April, 1998, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=90852, “Qualified Immunity: Ignorance Excused,” WP
45 +If constitutional rights are especially valued in comparison with other kinds of rights, it follows that constitutional violations would be viewed by society as especially serious and deserving of opprobrium. There is reason to think this is so. Constitutional violations, especially those that are likely to give rise to section 1983 suits, involve abuses of power by governmental actors. The implications of official misconduct go far beyond the concrete harm to persons or property suffered by any one individual. Public officials are, after all, charged with upholding and enforcing the law and acting for the public good. When officials use their public offices to engage in lawbreaking, there is a betrayal of trust that is experienced not only by the individual, but by the entire community. n432 Consider, for example, *675 the public outcry that was engendered by the beating of Rodney King by Los Angeles police officers. The image of a circle of uniformed law enforcement officials beating an unarmed man lying crumpled on the ground is troubling in a way that a private beating is not. Similar reactions accompanied recent allegations that New York City police officers openly beat and sodomized (with a toilet plunger) a young Haitian immigrant in the bathroom at the police station. n433 When the malefactor is a governmental official whose injurious conduct was made possible by her official authority and position, "ordinary injury is augmented by the abuse of governmental power." n434 In such cases wrongdoing that could "be described as trespass, assault and battery, false imprisonment, or defamation takes on new urgency." n435 If the law-enforcers cannot be trusted to conduct themselves according to the law, then who can? Governmental abuse of power creates a sense of indignation on the part of the governed, and special opprobrium is reserved for abusers of the public trust. n436∂ If individual liability for constitutional violations entails wrongdoing and signals societal condemnation, then it would make sense to retain such liability even if the financial burden is ultimately borne by the governmental employer rather than by the individual official. n437 Indeed, in the criminal context it has been argued that the *676 moral blame entailed by a criminal conviction is more important in discouraging antisocial conduct than the threat of official sanctions. n438 One need not go that far to accept that the human desire to avoid societal opprobrium plays an important role in gaining compliance with the criminal law. n439 Similarly, the societal condemnation accompanying damages liability for constitutional violations enhances the law's power to reduce unconstitutional conduct and reinforce constitutional norms. Moreover, the stigma entailed in such liability plays an important role in communicating those norms, not only through final verdicts in courts but through public reaction to reported allegations of clear constitutional impropriety.
46 +
47 +The plan fosters cooperation, which operates as a key check against police departments. De Stefan ‘16
48 +Lindsey de Stefan - J.D. Candidate, 2017, Seton Hall University School of Law; B.A., Ramapo College of New Jersey. ““No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct.” The date is claimed to be 2017… but that’s impossible. So it says it has had 360 downloads since July 26, 2016 which is when the article is most likely to have been assumed to be released on the website. Stetan Hall Law. http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1861andcontext=student_scholarship JJN
49 +VI. Amending Qualified Immunity Doctrine as a Catalyst for Curbing Police Violence Altering the qualified immunity doctrine is an excellent way to begin the path to restoring trust by establishing a much-needed sense of accountability. Civil remedies are a good jumping off point because, as repeated failures to indict officers—even in the face of video footage—have demonstrated, accountability via the criminal law is a far-off possibility, if it is possible at all. Prosecutors are generally disinclined to bring charges against law enforcement officers, 140 and grand juries are equally as hesitant to indict them.141 Independent investigations, as suggested by the Task Force, are an excellent idea, but establishing a feasible system nationwide would take time. On the other hand, Supreme Court amendment of the stringent immunity afforded to police officers could take effect relatively quickly. Of course, this is easier said than done. The Court has increasingly enlarged the immunity afforded to police officers in its recent decisions, and any 180-degree turnaround would likely require a change in Court composition. But the current Court can nevertheless begin to firm up qualified immunity doctrine by simply providing more guidance and clarification, thereby enhancing accountability and reaffirming trust between law enforcement and their respective communities. The concept of a clearly established right is, in many ways, a problem that requires solving. A substantial number of cases are disposed of on the premise that a right was not “clearly established”—yet lower courts have struggled for years with what those words actually mean. Arguably, then, at least some officers are escaping liability simply because of the Court’s repeated failures to establish consistency in its qualified immunity jurisprudence. But if the Court used qualified immunity opinions to demonstrate what qualifies as a clearly established right by meticulously outlining its reasoning in answering whether a set of facts implicates such a right, the Court could alleviate some confusion. In other words, rather than taking cases simply to overturn the lower courts’ denial of immunity, it could take cases to affirm those denials or, alternatively, to reverse lower courts’ grant of immunity. By so doing, the Court can give examples of what constitutes a right that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right,”142 and can give lower courts somewhat of a guide to follow. By elucidating the contours of the clearly established right, the Court would alleviate some of the confusion of lower courts and ensure that they are in fact applying that part of the test properly. Proper application of this prong directly promotes accountability, as the public can rest assured that, at least in that regard, cases are not being disposed of based merely on perplexity and uncertainty. Moreover, increased confidence about the clearly established prong could foster a willingness to take on the second part of the test and, in so doing, advance the development of constitutional law and clarify further constitutional rights. The Court could also accept that its attempts at a general standard for all classes of officials that are not otherwise entitled to absolute immunity has been problematic and hugely unsuccessful. Though the Court apparently fears “complicating” qualified immunity, the doctrine is quite complicated as is, and adopting more particularized classes of officials with different standards of immunity would not only assist lower courts in properly analyzing immunity, but would promote justice in constitutional tort litigation. For example, the Court could classify officials based on the approximate number of people with whom they come in contact, so to speak, and that might therefore bring civil suits against them. A governor, for example, could theoretically face a lawsuit from any resident of the state, and would thus be afforded more stringent protection—much like the standard afforded to all officials now. But law enforcement officers, who come in contact with only the residents of one town, city, or perhaps county, risk possible suits from a much smaller pool of people. The threat of litigation would therefore be much less crippling on governmental function, and immunity protection need not be so rigorous. In the case of allegations of Fourth Amendment violations, in light of the already-existing reasonableness standard, immunity may be inappropriate altogether. In addition, the Court could do its proverbial homework and take notice of the widespread indemnification of officers that often results in a complete absence of financial or employmentrelated consequences for law enforcement. If the Court stopped relying on its own intuition, and instead came to grip with the facts, it would likely realize that it has been overzealous in protecting low-level officers, and be inclined to alter course somewhat. By beginning to mend the qualified immunity doctrine in these ways, the Court will allow more civil suits for the vindication of constitutional rights to succeed. This will help to reduce the public mentality—strengthened by recent events—that cops get away with everything, in every regard. Civil suits avoid subjecting law enforcement to any criminal liability that, because of recent events, many laypersons believe is warranted. While this may be true in select circumstances, reality demonstrates that criminal charges are highly unlikely to stick against a police officer. But allowing more civil suits to go forward will serve as an important reminder to both civilians and law enforcement that the police are not above the law, and that they are held accountable for their wrongdoings. In turn, this accountability will begin to heal the relationship between law enforcement and communities by serving as the first step on what will surely be a long path to rebuilding the trust that is so crucial. VII. Conclusion By adopting different immunity standards for high-level and low-level officials, clarifying the vagueness surrounding the definition of a “clearly established” right, and acknowledging the real-world effects of indemnification, the Court can begin to repair some of the substantial flaws in its qualified immunity jurisprudence. As it does, it will permit more constitutional tort suits to succeed, thereby fostering law enforcement accountability. Because criminal liability is nearly impossible as a practical matter, and because strategies like improving police training and recruiting tactics will likely take years to effectively implement, civil suits are the (relatively) fastest way to demonstrate to the country that our officers are our guardians and that they are accountable to us. It is thus the most immediate way to rebuild trust and begin healing the citizenpolice relationship.
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