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1 -1AC Grid Modernization
2 -I. Framework
3 -The Standard is maximizing expected utility.
4 -Util ensures that governments are responsive to peoples’ needs and is best for coordinating the actions of groups.
5 -Goodin ’95 - Robert E. Goodin. Philosopher of Political Theory, Public Policy, and Applied Ethics, Utilitarianism as a Public Philosophy, Cambridge University Press, 1995. p. 26-7
6 -The great advantage of Utilitarianism as a guide to public conduct is that it avoids gratuitous sacrifices, it ensures as best we are able to ensure in the uncertain world of public policy-making that policies are sensitive to people’s interests or desires or preferences. The great failing of more deontological theories, applied to those realms, is that they fixate upon duties done for the sake of duty rather than for the sake of any good that is done by doing one’s duty. Perhaps it is permissible (perhaps even proper) for private individuals in the course of their personal affairs to fetishize duties done for their own sake. It would be a mistake for public officials to do likewise, not least because it is impossible. The fixation on motives makes absolutely no sense in the public realm, and might make precious little sense in the private one even, as chapter 3 shows. The reason public action is required at all arises from the inability of uncoordinated individual action to achieve certain morally desirable ends. Individuals are rightly excused from pursing those ends. The inability is real; the excuses, perfectly valid. But libertarians are right in their diagnosis, wrong in their prescription. That is the message of chapter 2. The same thing that makes those excuses valid at the individual level – the same thing that relieves individuals to organize themselves into collective units that are capable of acting where they are isolated as individuals are not. When they organize themselves into these collective units, those collective deliberations inevitable take place under very different circumstances, and their conclusions inevitably take very different forms. Individuals are morally required to operate in that collective, in certain crucial respects. But they are practically circumscribed in how they can operate, in their collective mode. And those special constraints characterizing the public sphere of decision-making give rise to the special circumstances that make utilitarianism peculiarly apt for public policy-making, in ways set out more fully in chapter 4. Government house utilitarianism thus understood is, I would argue, a uniquely defensible public philosophy.
7 -
8 -II. Advocacy
9 -Text: Countries will phase-out large scale commercial nuclear power plants.
10 -To clarify, the plan is to phase-out traditional baseload nuclear power plants that typically generate 1000 megawatts of electricity or more.
11 -The plan has worked in California, which shows transition to a modern, renewables-driven electrical grid is more economical than reliance on nuclear. The technology is here now.
12 -Smeloff on 6/29 - Ed Smeloff 30 years of experience in energy policy and solar business development, “The End of the Era of Baseload Power Plants,” Green Tech Media (Web). June 29, 2016. Accessed October 7, 2016. http://www.greentechmedia.com/articles/read/the-end-of-the-era-of-baseload-power-plants AT
13 -PGandE’s plan to close the Diablo Canyon nuclear power plant ~-~- a facility that currently provides about 10 percent of California’s electricity ~-~- marks a historic transition for the electric power industry. Not only does it signal the end of nuclear power in California, but it also ushers in a new way of thinking about the very foundations of our electric system.¶ Much has (rightly) been made of PGandE’s commitment to close the nuclear facility without increasing greenhouse gas emissions. This low-carbon future is now possible because the costs of solar and wind power have declined dramatically over the past five years, while the performance and reliability of these technologies have been proven, and they are attracting more and more investment. ¶ Less commented on is that closing Diablo Canyon, coming on top of the shutdown of the San Onofre nuclear power plant three year ago, means that California’s electric grid will be largely free of baseload power plants. Going forward, California’s electric power system will be operated in a very different manner than it has been for the last 100 years.¶ Since the days of Thomas Edison and George Westinghouse, the foundation of the electric grid has been power plants that run flat-out 24 hours a day for most of the year. Throughout the 20th century, these baseload power plants became ever bigger, with nuclear power plants like Diablo Canyon capable of producing thousands of megawatts. ¶ Starting in the 1980s, solar and wind power plants, driven forward by national energy policies like the Public Utilities Regulatory Policy Act (PURPA) and state-enacted renewable portfolio standards, began to be connected to the electric grid. Early on, many utilities warned that these variable output technologies would make the grid unstable and couldn’t be counted on to provide reliable power around the clock. ¶ The PGandE agreement to close Diablo Canyon shows that those fears have been outpaced by innovation. It is now possible to envision an energy future where the grid will be balanced moment to moment by a combination of energy storage, responsive load and fast-ramping technologies like fuel cells. In fact, an entire section of the agreement PGandE reached with environmental groups like Friends of the Earth, Environment California and the Natural Resources Defense Council addresses the issue of grid stability and reliability through resource integration and energy storage.¶ This key section of the agreement acknowledges that the removal of a large baseload unit during periods of peak solar production will reduce the need for the periodic curtailment of renewable resources. It also calls on regulators to give serious consideration to PGandE’s development of large-scale energy storage projects, including pumped hydro storage like the Helms Pumped Storage Plant located 50 miles east of Fresno.¶ The Helms project, which began operating in 1984, was supported by regulators because it was assumed there would be excess power at night from California’s baseload nuclear power plants. Now the opposite is occurring. As more and more solar power gets connected to the grid both in front of and behind the meter, there is the potential for excess power being generated in the middle of the day. The 1,212-megawatt Helms project and other sources of energy storage can be used to absorb excess solar power and dispatch it later in a flexible manner when consumers need the power. ¶ The success of California’s transition to a more flexible and resilient power system should be seen as a model for the rest of the country. It has become increasingly obvious over the last few years that nuclear power is an economic albatross. Utilities in the Midwest, Mid-Atlantic and Northeast can no longer economically operate many plants. Meanwhile, many coal plants have reached the end of their useful lives, and others will need to be retired early to reduce greenhouse gas emissions. ¶ With the plan to close Diablo Canyon and PGandE’s commitment to reach 55 percent carbon-free power by 2031, it should be increasingly clear to those responsible for electric resource planning at the state, regional and national levels that the era of baseload power is coming to an end. Utility regulators and energy policymakers across the country should take notice of what’s happening in California and set in place processes that take full advantage of the modern, low-cost clean energy options available throughout the United States.
14 -III. Advantages
15 -1. Grid Modernization
16 -A. Nuclear focus directly trades off with grid modernization efforts. They compete for investment funds and are designed differently for both flexibility and capacity.
17 -Froggatt and Schneider 2010 – Antony Froggatt Senior Research Fellow at Chatham House; For over 20 years he has worked extensively on EU energy policy for NGOs and think tanks and as a consultant to European governments, the European Commission and Parliament and commercial bodies and Mycle Schneider Independent international consultant on energy and nuclear policy. He is currently advising the USAID funded program ECO-Asia on energy efficiency and renewable energy policy., “Systems for Change: Nuclear Power vs. Energy Efficiency + Renewables?” Brussels: Heinrich-Böll-Stiftung and Green European Foundation (March 2010) pp. 46-47. https://pl.boell.org/sites/default/files/froggatt-schneider_systems_for_change.pdf AT
18 -Global experience of nuclear construction shows a tendency of cost overruns and delays. The history of the world’s two largest construction programs, that of the United States and France, shows a five and threefold increase in construction costs respectively. This cannot be put down to first of a kind costs or teething problems, but systemic problems associated with such large, political and complicated projects. Recent experience, in Olkiluoto in Finland and the Flamanville project in France, highlight the fact that this remains a problem. The increased costs and delays with nuclear construction not only absorb greater and greater amounts of investment, but the delays increase the emissions from the sector. From a systemic point of view the nuclear and energy efficiency+renewable energy approaches clearly mutually exclude each other, not only in investment terms. This is becoming increasingly transparent in countries or regions where renewable energy is taking a large share of electricity generation, i.e., in Germany and Spain. The main reasons are as follows. • Competition for limited investment funds. A euro, dollar or yuan can only be spent once and it should be spent for the options that provide the largest emission reductions the fastest. Nuclear power is not only one of the most expensive but also the slowest option. • Overcapacity kills efficiency incentives. Centralized, large, power‐generation units tend to lead to structural overcapacities. Overcapacities leave no room for efficiency. • Flexible complementary capacity needed. Increasing levels of renewable electricity sources will need flexible, medium‐load complementary facilities and not inflexible, large, baseload power plants. • Future grids go both ways. Smart metering and smart grids are on their way. The logic is an entirely redesigned system where the user gets also a generation and storage function. This is radically different from the top‐down centralized approach. For future planning purposes, in particular for developing countries, it is crucial that the contradictory systemic characteristics of the nuclear versus the energy efficiency+renewable energy strategies are clearly identified. There are numerous system effects that have so far been insufficiently documented or even understood. Future research and analysis in this area is urgently needed. This is particularly important at the current time because the next decade will be vital in determining the sustainability, security and financial viability of the energy sector for at least a generation. Three key policy drivers and considerations have come together that must transform the way in which energy services are provided and energy carriers (electricity, hydrogen…) and fuels are generated, transported and used. These are:
19 -
20 -B. Europe proves that nuclear investments trade off with renewables and smart-grid.
21 -Gauntlett 2012 - Dexter Gauntlett principal research analyst contributing to Navigant Research’s Energy Technologies program, leading the company’s Distributed Generation research service with a focus on global renewable energy markets including solar, wind, inverters, microgrids, energy storage, and other enabling technologies. Gauntlett has extensive experience in the cleantech industry in the United States and internationally in both the private and non-profit sectors, including a background working with development agencies, development banks, and government programs intended to catalyze cleantech projects in urban and off-grid settings., “Renewables in U.K. at a Turning Point,” Navigant Research Blog (Web.) April 18, 2012. Accessed October 7, 2016. https://www.navigantresearch.com/blog/renewables-in-u-k-at-a-turning-point AT
22 -No doubt the financial crisis has changed the equation for many U.K. political leaders, and each country will choose its own carbon reduction path – but members of Parliament must keep in mind that there are trade-offs. The most critical trade-offs include the possibility that tying up precious capital on nuclear could reduce investment in smart-grid/transmission infrastructure required to realize the ambitious offshore targets and to enable distributed generation to succeed at scale. Opting out of new nuclear, of course, is the path that Spain, Sweden, Denmark and Germany decided to take, instead doubling down on renewables (Germany’s reduction in solar feed-in tariff rates notwithstanding). That’s why they’re in the starting line-up.
23 -
24 -C. Reliance on nuclear locks in a centralized power grid as companies focus on larger plants. The state has to subsidize the industry to make it viable.
25 -Cooper 2010 - Mark Cooper Senior Fellow For Economic Analysis Institute For Energy And The Environment Vermont Law School, “Policy Challenges Of Nuclear Reactor Construction: Cost Escalation And Crowding Out Alternatives Lessons From The U.S. And France for the Effort To Revive The U.S. Industry With Loan Guarantees And Tax Subsidies,” Physicians for Social Responsibility (September 2010). Accessed October 7, 2016. http://www.psr.org/nuclear-bailout/resources/policy-challenges-of.pdf AT
26 -The commitment to nuclear reactors in France and the U.S appears to have crowded out alternatives. The French track record on efficiency and renewables is extremely poor compared to similar European nations, as is that of the U.S.¶ States where utilities have not expressed an interest in getting licenses for new nuclear reactors have a better track record on efficiency and renewable and more aggressive plans for future development of efficiency and renewables, as shown in Exhibit ES-3. These states:¶ had three times as much renewable energy and ten times as much non-hydro renewable energy in their 1990 generation mix and¶ set RPS goals for the next decade that are 50 percent higher;¶ spent three times as much on efficiency in 2006;¶ saved over three times as much energy in the 1992-2006 period, and¶ have much stronger utility efficiency programs in place.¶ The cost and availability of alternatives play equally important roles. In both nations, nuclear reactors are substantially more costly than the alternatives. The U.S. appears to have a much greater opportunity to develop alternatives not only because the cost disadvantage of nuclear in the U.S. is greater, but also because the portfolio of potential resources is much greater in the U.S. The U.S. consumes about 50 percent more electricity per dollar of gross domestic product per capita than France, which have the highest electricity consumption among comparable Western European nations (see Exhibit ES-4).¶ The U.S. has renewable opportunities that are four times as great as Europe.¶ Design problems and deteriorating economic prospects have resulted in a series of setbacks for nuclear construction plans and several utilities with large nuclear generation assets who had contemplated building new reactors have shelved those plans because of the deteriorating economics of nuclear power relative to the alternatives.¶ POLICY IMPLICATIONS¶ The two challenges of nuclear reactor construction studied in this paper are linked in a number of ways. Nuclear reactors are extremely large projects that tie up managerial and financial resources and are affected by cost escalation, which demands even greater attention. The reaction to cost escalation has been to pursue larger runs of larger plants in the hope that learning and economies of scale would lower costs. In this environment, alternatives are not only neglected, they become a threat because they may reduce the need for the larger central station units.¶ The policy implications of the paper are both narrow and broad.¶ Narrowly, the paper shows that following the French model would be a mistake since the French nuclear reactor program is far less of a success than is assumed, takes an organizational approach that is alien to the U.S., and reflects a very different endowment of resources. Broadly the paper shows that it is highly unlikely that the problems of the nuclear industry will be solved by an infusion of federal loans guarantees and other subsidies to get the first plants in a new building cycle completed. If the industry is relaunched with massive subsidies, this analysis shows the greatest danger is not that the U.S. will import French technology, but that it will replicate the French model of nuclear socialism, since it is very likely that nuclear power will remain a ward of the state, as has been true throughout its history in France, a great burden on ratepayers, as has been the case throughout its history in the U.S., and it will retard the development of lower cost alternatives, as it has done in both the U.S. and France.
27 -
28 -D. Reliance on nuclear leads to overcapacity that is costly and pushes us to increase consumption rather than improve efficiency.
29 -Cooper 2010 - Mark Cooper Senior Fellow For Economic Analysis Institute For Energy And The Environment Vermont Law School, “Policy Challenges Of Nuclear Reactor Construction: Cost Escalation And Crowding Out Alternatives Lessons From The U.S. And France for the Effort To Revive The U.S. Industry With Loan Guarantees And Tax Subsidies,” Physicians for Social Responsibility (September 2010). Accessed October 7, 2016. http://www.psr.org/nuclear-bailout/resources/policy-challenges-of.pdf AT
30 -A costly technology suffering from severe cost escalation puts pressure on those involved in developing and deploying it. With large commitments of financial and institutional resources to the construction of reactors, there is a tendency to press projects ahead in spite of adverse economics. We have already seen an indication of this in the failure of price projection to reflect reality. The dysfunction of the system had other substantial impacts, especially on the choice of alternatives.¶ FRANCE¶ The French program suffered from demand reduction brought on by the oil price shocks of the 1970s. Much like the industry in the U.S., it did not adjust rapidly or well, instead building up excess capacity. Grubler notes the tension between the stimulus for more capacity to reduce dependence on oil and the demand reduction induced by the oil price shock, not unlike the tensions between climate change policy and the current recession-induced demand reduction.¶ This period is overshadowed by the unfolding of the consequences of the two "oil shocks" that reinforced the political legitimacy of the ambitious nuclear investment program. The oil shocks also paved the way for the subsequent nuclear overcapacity, as slackening demand growth remained unreflected in the bullish demand and capacity expansion projections and orders.¶ Thus the French PWR program remained at full throttle regardless of external circumstances. Orders of 5-6 reactors per year, supplemented by grid-connections of the first reactors commissioned in the previous period, and first operating experiences from initial reactors became available in the late 1970s.55¶ The PEON Commission report in 1973 projected France‘s electricity demand as 400 TWh in 1985 and 750 TWh in 2000, compared to actual numbers of 300 and 430 TWh respectively (G-M-T, 2000:373). These over-projections of demand growth led subsequently to substantial (and costly) overcapacity in orders and construction, requiring not un-painful adjustments.56¶ The highly centralized French state monopoly was able to force projects through to completion.57The ability of the centralized system to force reactors online also had the effect of justifying policies to promote wasteful use of electricity to absorb the surplus. These difficulties cascade and distort policy choices. The result was excess capacity that placed a burden on taxpayers and consumers. Schneider argues that as many as one-fifth to one-quarter of the reactors was not needed. The push to absorb the large excess of baseload capacity caused the abandonment of efficiency and conservation and created a peak load problem.¶ In the 1980s significant overcapacities were built up in the power sectors as well as in refineries and nuclear fuel industries and most of the energy intelligence initiatives based on efficiency and conservation were abandoned. … ¶ Rather than downsizing its nuclear extension program, EDF develop a very aggressive two-front policy: long-term baseload power export contracts and dumping of electricity into competitive markets like space heating and hot water generation…¶ France increasingly lacks peak load power whose consumption skyrocketed in the 1980s and 1990s in particular as a consequence of massive introduction of electric space heating…¶ Today, per capita electricity consumption in France is almost a quarter higher than in Italy (that phased out nuclear energy after the Chernobyl accident in 1986) and 15 higher than the EU27 average.58¶ The dysfunctionalities of the system in France may be somewhat less apparent than in the U.S. (discussed below), but they are just as real.¶ The system is entirely exempt from influential corrective elements. Once a decision is taken, there is no way back or out. Examples include the large overbuilding of nuclear capacity… By the middle of the 1980s, it was perfectly clear that the nuclear program was vastly oversized by some 12 to 16 units. But while 138 reactor orders were cancelled in the U.S. at various stages of implementation, absolutely no changes were made to the planning, even when electricity consumption did not even nearly follow forecasts. The reaction was to develop power export for dumping prices and to stimulate electricity consumption by any possible means (in particular thermal uses like heating, hot water production and cooking).59¶ The drive for policies that would increase consumption to absorb excess capacity had a side effect. There was little inclination to pursue alternative sources of generation. Consequently, ―the energy efficiency + renewables efforts in France have remained severely underdeveloped…. In 2008 Spain added more wind power capacity (4,600 MW) than France had installed in total by 2007 (4,060 MW).60
31 -E. Renewables and distributed power generation are the only way to guarantee grid stability and flexibility.
32 -Diesendorf 2016 - Mark Diesendorf Assoc. Prof. of Interdisciplinary Environmental Studies, UNSW Australia. Previously, a Principal Research Scientist in CSIRO, Prof. of Environmental Science and Founding Director of the Institute for Sustainable Futures at University of Technology Sydney, “Dispelling the nuclear baseload myth: nothing renewables can’t do better,” Energy Post (Web). March 23, 2016. Accessed October 7, 2016. http://energypost.eu/dispelling-nuclear-baseload-myth-nothing-renewables-cant-better/
33 -The main claim used to justify nuclear is that it’s the only low carbon power source that can supply ‘reliable, base load electricity. But not only can renewables supply baseload power, they can do something far more valuable: supply power flexibly according to demand, writes Mark Diesendorf, Associate Professor of Interdisciplinary Environmental Studies at UNSW Australia. That, says Diesendorf, makes nuclear power really redundant. (This article was first published in Ecologist.) ¶ We have all heard the claim. We need nuclear power because, along with big hydropower, it’s the only low carbon generation technology that can supply ‘reliable baseload power’ on a large scale. ¶ For example, the UK Energy Secretary Amber Rudd, attempted to justify the decision to build the proposed Hinkley Point C nuclear power station on the grounds that “we have to secure baseload electricity.” ¶ Similarly, former Australian Industry Minister Ian Macfarlane recently claimed at a uranium industry conference: “Baseload, zero emission, the only way it can be produced is by hydro and nuclear.” ¶ Underlying this claim are three key assumptions. First, that baseload power is actually a good and necessary thing. In fact, what it really means is too much power when you don’t want it, and not enough when you do. What we need is flexible power (and flexible demand too) so that supply and demand can be matched instant by instant. ¶ “In the words of former Green Senator Christine Milne, ‘We are now in the midst of a fight between the past and the future.’ The refutation of the baseload fairy tale and other myths falsely denigrating renewable energy are a key part of that struggle.” ¶ The second assumption is that nuclear power is a reliable baseload supplier. In fact it’s no such thing. All nuclear power stations are subject to tripping out for safety reasons or technical faults. That means that a 3.2GW nuclear power station has to be matched by 3.2GW of expensive ‘spinning reserve’ that can be called in at a moments notice. ¶ The third is that the only way to supply baseload power is from baseload power stations, such as nuclear, coal and gas, designed to run flat-out all the time whether their power is actually needed or not. That’s wrong too. ¶ Practical experience and computer simulations show it can be done ¶ But first, take a look at Figure 1, which shows the daily variation of electricity demand in summer in a conventional large-scale electricity grid without much solar energy. Baseload demand is the pale blue region across the bottom of the graph. ¶ ‘Baseload power stations’ are inflexible in operation, in the sense that they are unsuitable for following the variations in demand and supply on timescales of minutes and hours, so they have to be supplemented with flexible peak-load and slightly flexible intermediate-load power stations. ¶ Peak-load power stations are hydro-electric systems with dams and open-cycle gas turbines (OCGTs), essentially jet engines set up for power generation rather than aircraft propulsion. They can respond to variations in demand and supply on timescales of minutes. ¶ The assumption that baseload power stations are necessary to provide a reliable supply of grid electricity has been disproven by both practical experience in electricity grids with high contributions from renewable energy, and by hourly computer simulations.¶ In 2014 the state of South Australia had 39 of annual electricity consumption from renewable energy (33 wind + 6 solar) and, as a result, the state’s base-load coal-fired power stations are being shut down as redundant. For several periods the whole state system has operated reliably on a combination of renewables and gas with only small imports from the neighbouring state of Victoria.¶ The north German states of Mecklenburg-Vorpommern and Schleswig-Holstein are already operating on 100 net renewable energy, mostly wind. The ‘net’ indicates trading with each other and their neighbours. They do not rely on baseload power stations.¶ A host of studies agree: baseload power stations are not needed¶ “That’s cheating”, nuclear proponents may reply. “They are relying on power imported by transmission lines from baseload power stations elsewhere.” Well, actually the imports from baseload power stations are small.¶ For countries that are completely isolated (e.g. Australia) or almost isolated (e.g. the USA) from their neighbours, hourly computer simulations of the operation of the electricity supply-demand system, based on commercially available renewable energy sources scaled up to 80-100 annual contributions, confirm the practical experience.¶ In the USA a major computer simulation by a large team of scientists and engineers found that 80-90 renewable electricity is technically feasible and reliable (They didn’t examine 100.) The 2012 report, Renewable Electricity Futures Study. Vol.1. Technical report TP-6A20-A52409-1 was published by the US National Renewable Energy Laboratory (NREL). The simulation balances supply and demand each hour.¶ The report finds that “renewable electricity generation from technologies that are commercially available today, in combination with a more flexible electric system, is more than adequate to supply 80 of total U.S. electricity generation in 2050 while meeting electricity demand on an hourly basis in every region of the United States.”¶ Drawing on diverse renewable energy sources, with different statistical properties, provides reliability. This means relying on multiple technologies and spreading out wind and solar PV farms geographically¶ Similar results have been obtained from hourly simulation modeling of the Australian National Electricity Market with 100 renewable energy (published by Ben Elliston, Iain MacGill and I in 2013 and 2014) based on commercially available technologies and real data on electricity demand, wind and solar energy. There are no baseload power stations in the Australian model and only a relatively small amount of storage. Recent simulations, which have yet to be published, span eight years of hourly data.¶ These, together with studies from Europe, find that baseload power stations are unnecessary to meet standard reliability criteria for the whole supply-demand system, such as loss-of-load probability or annual energy shortfall.¶ Furthermore, they find that reliability can be maintained even when variable renewable energy sources, wind and solar PV, provide major contributions to annual electricity generation, up to 70 in Australia. How is this possible?¶ Fluctuations balanced by flexible power stations¶ First, the fluctuations in variable wind and solar PV are balanced by flexible renewable energy sources that are dispatchable, i.e. can supply power on demand. These are hydro with dams, Open Cycle Gas Turbines (OCGTs) and concentrated solar thermal power (CST) with thermal storage, as illustrated in Figure 2. It ‘s not essential for every power station in the system to be dispatchable.¶ Incidentally the gas turbines can themselves be fuelled by ‘green gas’, for example from composting municipal and agricultural wastes, or produced from surpluses of renewable electricity. More on this below …¶ All energy use in the USA, including transport and heat, could be supplied by renewable electricity¶ Second, drawing on diverse renewable energy sources, with different statistical properties, provides reliability. This means relying on multiple technologies and spreading out wind and solar PV farms geographically to reduce fluctuations in their total output. This further reduces the already small contribution from gas turbines to just a few percent of annual electricity generation.¶ Third, new transmission lines may be needed to achieve wide geographic distribution of renewable energy sources, and to multiply the diversity of renewable energy sources feeding into the grid. For example, an important proposed link is between the high wind regions in north Germany and the low wind, limited solar regions in south Germany. Texas, with its huge wind resource, needs greater connectivity with its neighbouring US states.¶ Fourth, introducing ‘smart demand management’ to shave the peaks in electricity demand and to manage periods of low electricity supply, can further increase reliability. This can be assisted with smart meters and switches controlled by both electricity suppliers and consumers, and programmed by consumers to switch off certain circuits (e.g. air conditioning, water heating, aluminium smelting) for short periods when demand on the grid is high and/or supply is low.¶ As summarized by the NREL study: “RE (Renewable Energy) Futures finds that increased electricity system flexibility, needed to enable electricity supply-demand balance with high levels of renewable generation, can come from a portfolio of supply- and demand-side options, including flexible conventional generation, grid storage, new transmission, more responsive loads, and changes in power system operations.”¶ A recent study by Mark Jacobson and colleagues went well beyond the above studies. It showed that all energy use in the USA, including transport and heat, could be supplied by renewable electricity. The computer simulation used synthetic data on electricity demand, wind and sunshine taken every 30 seconds over a period of six years.¶ Storage or ‘windgas’ could also manage fluctuations¶ The above ‘flexible’ approach may not be economically optimal for the UK and other countries with excellent wind resource but limited solar resource. Another solution to managing fluctuations in wind and solar is more storage, e.g. as batteries or pumped hydro or compressed air.¶ The whole system creates grid stability and cannot drop out all at once like a nuclear plant¶ A further alternative is the ‘windgas’ scenario recently advocated by Energy Brainpool as a greener and lower cost alternative to the UK’s Hinkley C nuclear project. The idea is to use excess wind energy to produce hydrogen gas by electrolysing water and then convert the hydrogen to methane that fuels combined cycle gas turbine (CCGT) power stations.¶ In fact, not all the hydrogen needs to be converted into methane, and it’s more efficient to keep some of it as hydrogen, a useful fuel in its own right. Another option is to use the hydrogen to make ammonia (NH3) which can both be used as a fuel, and as a feedstock for the fertiliser industry, displacing coal or natural gas.¶ In Brainpool’s scenario, the system is used to replicate the power output of the 3.2GW Hinkley C nuclear power station, and shows it can be done at a lower cost. But in fact, it gets much better than that:¶ as each wind turbine, CCGT, gas storage unit and ‘power to gas’ facility is completed, its contribution begins immediately, with no need for the whole system to be built out;¶ the system would in practice be used to provide, not baseload power, but flexible power to meet actual demand, and so would be much more valuable;¶ as solar power gets cheaper, it will integrate with the system and further increase resilience and reduce cost;¶ the whole system creates grid stability and cannot drop out all at once like a nuclear plant, producing negative ‘integration costs’.¶ But in all the flexible, renewables-based approaches set out above, conventional baseload power stations are unnecessary. In the words of former Australian Greens’ Senator Christine Milne: “We are now in the midst of a fight between the past and the future”.¶ The refutation of the baseload fairy tale and other myths falsely denigrating renewable energy are a key part of that struggle.
34 -
35 -F. A distributed power system is more stable and energy efficient, produces higher quality power, provides myriad economic benefits to consumers, helps protect the grid from terrorism, provides reliable emergency power for critical infrastructure, and is better for the environment than baseload plants.
36 -CER 2007 - Consortium on Energy Restructuring, Virginia Tech, “1.3 Benefits of Distributed Generation,” Distributed Generation: Education Modules, Virginia Tech. (2007). http://www.dg.history.vt.edu/ch1/benefits.html AT
37 -Consumer advocates who favor DG point out that distributed resources can improve the efficiency of providing electric power. They often highlight that transmission of electricity from a power plant to a typical user wastes roughly 4.2 to 8.9 percent of the electricity as a consequence of aging transmission equipment, inconsistent enforcement of reliability guidelines, and growing congestion. At the same time, customers often suffer from poor power quality—variations in voltage or electrical flow—that results from a variety of factors, including poor switching operations in the network, voltage dips, interruptions, transients, and network disturbances from loads. Overall, DG proponents highlight the inefficiency of the existing large-scale electrical transmission and distribution network. Moreover, because customers’ electricity bills include the cost of this vast transmission grid, the use of on-site power equipment can conceivably provide consumers with affordable power at a higher level of quality. In addition, residents and businesses that generate power locally have the potential to sell surplus power to the grid, which can yield significant income during times of peak demand. Industrial managers and contractors have also begun to emphasize the advantages of generating power on site. Cogeneration technologies permit businesses to reuse thermal energy that would normally be wasted. They have therefore become prized in industries that use large quantities of heat, such as the iron and steel, chemical processing, refining, pulp and paper manufacturing, and food processing industries. Similar generation hardware can also deploy recycled heat to provide hot water for use in aquaculture, greenhouse heating, desalination of seawater, increased crop growth and frost protection, and air preheating. Beyond efficiency, DG technologies may provide benefits in the form of more reliable power for industries that require uninterrupted service. The Electric Power Research Institute reported that power outages and quality disturbances cost American businesses $119 billion per year. In 2001, the International Energy Agency (2002) estimated that the average cost of a one-hour power outage was $6,480,000 for brokerage operations and $2,580,000 for credit card operations. The figures grow more impressively for the semiconductor industry, where a two hour power outage can cost close to $48,000,000. Given these numbers, it remains no mystery why several firms have already installed DG facilities to ensure consistent power supplies.
38 -Perhaps incongruously, DG facilities offer potential advantages for improving the transmission of power. Because they produce power locally for users, they aid the entire grid by reducing demand during peak times and by minimizing congestion of power on the network, one of the causes of the 2003 blackout. And by building large numbers of localized power generation facilities rather than a few large-scale power plants located distantly from load centers, DG can contribute to deferring transmission upgrades and expansions—at a time when investment in such facilities remains constrained. Perhaps most important in the post-September 11 era, DG technologies may improve the security of the grid. Decentralized power generation helps reduce the terrorist targets that nuclear facilities and natural gas refineries offer, and—in the event of an attack—better insulate the grid from failure if a large power plant goes down.
39 -Environmentalists and academics suggest that DG technologies can provide ancillary benefits to society. Large, centralized power plants emit significant amounts of carbon monoxide, sulfur oxides, particulate matter, hydrocarbons, and nitrogen oxides. The Environmental Protection Agency has long noted the correlation between high levels of sulfur oxide emissions and the creation of acid rain. Because they concentrate the amount of power they produce, large power plants also focus their pollution and waste heat, frequently destroying aquatic habitats and marine biodiversity. On the other hand, recent studies have confirmed that widespread use of DG technologies substantially reduces emissions: A British analysis estimated that domestic combined heat and power technologies reduced carbon dioxide emissions by 41 in 1999; a similar report on the Danish power system observed that widespread use of DG technologies have cut emissions by 30 from 1998 to 2001. Moreover, because DG technologies remain independent of the grid, they can provide emergency power for a huge number of public services, such as hospitals, schools, airports, fire and police stations, military bases, prisons, water supply and sewage treatment plants, natural gas transmission and distribution systems, and communications stations. Finally, DG can help the nation increase its diversity of energy sources. Some of the DG technologies, such as wind turbines, solar photovoltaic panels, and hydroelectric turbines, consume no fossil fuels, while others, such as fuel cells, microturbines, and some internal combustion units burn natural gas, much of which is produced in the United States. The increasing diversity helps insulate the economy from price shocks, interruptions, and fuel shortages.
EntryDate
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1 -2016-10-29 21:11:19.0
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1 -Braden James
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1 -Lynbrook HH
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1 -2
Round
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1 -5
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1 -Marlborough Coates Aff
Title
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1 -Sept-Oct-Grid Modernization
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1 -Meadows
Caselist.CitesClass[3]
Cites
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1 -1AC Police Brutality
2 -Framework
3 -Social institutions must remedy systemic violence.
4 -Young 2009 - Young, Iris Marion Prof. Political Science U. Chicago. "Five faces of oppression." Geographic thought: A praxis perspective (2009): 55-71.
5 -Finally, many groups suffer the oppression of systematic violence. Members of some groups live with the knowledge that they must fear random, unprovoked attacks on their persons or property, which have no motive but to damage, humiliate, or destroy the person. In American society women, Blacks, Asians, Arabs, gay men, and lesbians live under such threats of violence, and in at least some regions Jews, Puerto Ricans, Chicanos, and other Spanish-speaking Americans must fear such violence as well. Physical violence against these groups is shockingly frequent. Rape Crisis Center networks estimate that more than one-third of all American women experience an attempted or successful sexual assault in their lifetimes. Manning Marable (1984, pp. 238–41) catalogues a large number of incidents of racist violence and terror against Blacks in the United States between 1980 and 1982. He cites dozens of incidents of the severe beating, killing, or rape of Blacks by police officers on duty, in which the police involved were acquitted of any wrongdoing. In 1981, moreover, there were at least five hundred documented cases of random white teenage violence against Blacks. Violence against gay men and lesbians is not only common, but has been increasing in the last five years. While the frequency of physical attack on members of these and other racially or sexually marked groups is very disturbing, I also include in this category less severe incidents of harrassment, intimidation, or ridicule simply for the purpose of degrading, humiliating, or stigmatizing group members.¶ Given the frequency of such violence in our society, why are theories of justice usually silent about it? I think the reason is that theorists do not typically take such incidents of violence and harrassment as matters of social injustice. No moral theorist would deny that such acts are very wrong. But unless all immoralities are injustices, they might wonder, why should such acts be interpreted as symptoms of social injustice? Acts of violence or petty harrassment are committed by particular individuals, often extremists, deviants, or the mentally unsound. How then can they be said to involve the sorts of institutional issues I have said are properly the subject of justice?¶ What makes violence a face of oppression is less the particular acts themselves, though these are often utterly horrible, than the social context surrounding them, which makes them possible and even acceptable. What makes violence a phenomenon of social injustice, and not merely an individual moral wrong, is its systemic character, its existence as a social practice.¶ Violence is systemic because it is directed at members of a group simply because they are members of that group. Any woman, for example, has a reason to fear rape. Regardless of what a Black man has done to escape the oppressions of marginality or powerlessness, he lives knowing he is subject to attack or harassment. The oppression of violence consists not only in direct victimization, but in the daily knowledge shared by all members of oppressed groups that they are liable to violation, solely on account of their group identity. Just living under such a threat of attack on oneself or family or friends deprives the oppressed of freedom and dignity, and needlessly expends their energy.¶ Violence is a social practice. It is a social given that everyone knows happens and will happen again. It is always at the horizon of social imagination, even for those who do not perpetrate it. According to the prevailing social logic, some circumstances make such violence more “called for” than others. The idea of rape will occur to many men who pick up a hitchhiking woman; the idea of hounding or teasing a gay man on their dorm floor will occur to many straight male college students. Often several persons inflict the violence together, especially in all-male groupings. Sometimes violators set out looking for people to beat up, rape, or taunt. This rule-bound, social, and often premeditated character makes violence against groups a social practice.¶ Group violence approaches legitimacy, moreover, in the sense that it is tolerated. Often third parties find it unsurprising because it happens frequently and lies as a constant possibility at the horizon of the social imagination. Even when they are caught, those who perpetrate acts of group-directed violence or harrassment often receive light or no punishment. To that extent society renders their acts acceptable.¶ An important aspect of random, systemic violence is its irrationality. Xenophobic violence differs from the violence of states or ruling-class repression. Repressive violence has a rational, albeit evil, motive: rulers use it as a coercive tool to maintain their power. Many accounts of racist, sexist, or homophobic violence attempt to explain its motivation as a desire to maintain group privilege or domination. I do not doubt that fear of violence often functions to keep oppressed groups subordinate, but I do not think xenophobic violence is rationally motivated in the way that, for example, violence against strikers is.¶ On the contrary, the violation of rape, beating, killing, and harrassment of women, people of color, gays, and other marked groups is motivated by fear or hatred of those groups. Sometimes the motive may be a simple will to power, to victimize those marked as vulnerable by the very social fact that they are subject to violence. If so, this motive is secondary in the sense that it depends on a social practice of group violence. Violence-causing fear or hatred of the other at least partly involves insecurities on the part of the violators; its irrationality suggests that unconscious processes are at work. In my Chapter 5 I discuss the logic that makes some groups frightening or hateful by defining them as ugly and loathsome bodies. I offer a psychoanalytic account of the fear and hatred of some groups as bound up with fears of identity loss. I think such unconscious fears account at least partly for the oppression I have here called violence. It may also partly account for cultural imperialism.¶ Cultural imperialism, moreover, itself intersects with violence. The culturally imperialized may reject the dominant meanings and attempt to assert their own subjectivity, or the fact of their cultural difference may put the lie to the dominant culture’s implicit claim to universality. The dissonance generated by such a challenge to the hegemonic cultural meanings can also be a source of irrational violence.¶ Violence is a form of injustice that a distributive understanding of justice seems ill equipped to capture. This may be why contemporary discussions of justice rarely mention it. I have argued that group-directed violence is institutionalized and systemic. To the degree that institutions and social practices encourage, tolerate, or enable the perpetration of violence against members of specific groups, those institutions and practices are unjust and should be reformed. Such reform may require the redistribution of resources or positions, but in large part can come only through a change in cultural images, stereotypes, and the mundane reproduction of relations of dominance and aversion in the gestures of everyday life. I discuss strategies for such change in my Chapter 5.
6 -Plan Text: The US ought to limit qualified immunity for police officers
7 -Solvency
8 -Civil lawsuits force police departments to improve policies, training, and oversight.
9 -Worral 04 - John L. Worral Assoc. Prof. of Criminal Justice, CSU San Bernardino; PhD in Political Science from Washington State U., “Chapter 10: Police Officers, Excessive Force, and Civil Liability,” Controversies in Policing. Eds Quint C. Thurman Texas State U., San Marcos and Andrew Giacomazzi Boise State U.. Cincinnati: Anderson Publishing, Lexis Nexis Group. pp. 139-155 (2004). AT
10 -Civil lawsuits can also serve as something of a quality-of-service yardstick against which to measure police officers’ performance. Many important court cases, resulting from a lawsuit being filed against a police officer, supervisor, or agency, have fostered improvements in police training and more responsible law enforcement in general, especially in the area of use of force (Kappeler, 2001). To this end, an important Supreme Court decision was Tennessee v. Garner (1985), which placed serious restrictions on the ability of the police to use deadly force.¶ Changes in public organizations are often akin to “bending granite” (Guyot, 1979); few civil servants enjoy parting with the comforts of tradition. However, lawsuits can give police agencies a strong incentive to change. Alpert and Dunham (1996:244) have stated that “suits against the police that rove inadequate administrative controls, deficient policies, or customs and practices that are improper or illegal, can force the department to correct its specific deficiencies and review all policies, practices, and customs.” While civil lawsuits may be undesirable, they serve an important function, which allows police agencies to grow and evolve to meet the demands placed on them by a changing public.
11 -
12 -Civil liability is more effective at settling wrongs than criminal liability.
13 -Geller and Toch ’59 - William A. Geller, JD, (Director of Geller and Associates) and Hans Toch (professor of psychology in the School of Criminal Justice at the University of Albany). “Police Violence: Understanding and Controlling Police Abuse of Force.” Yale University Press, Nov 12, 1959. Google Books.
14 -The main objective of a criminal case is to adjudicate guilt and express societal condemnation of morally culpable individuals. The criminal law is not an effective way to prevent excessive force or to cure systemic misbehavior. Indeed, the use of criminal law to punish police who brutalize, assault, abuse, and even murder citizens represents a failure of preventive measures and, if the misdeeds are wide- spread, signals the need for immediate and thorough internal reform. The criminal law can proceed only against specific wrongdoers and within very circumscribed procedural forms. Criminal law can punish and, in some instances, deter police brutality, but it cannot of itself force fundamental change in how a department is run, supervised, led, and made accountable. Criminal law’s most appropriate application, therefore, is against “bad apples”-individual officers who have committed sanctionable acts. By contrast, the civil law, because of its greater flexibility and scope, has the potential to serve as the instrument of systemic reform. In adjusting rights and settling wrongs, civil remedies generally offer distinct advantages over criminal sanctions. First, a victim of police misconduct can sue on his or her own behalf and need not await the government’s decision to go forward. Second, an injured party need not overcome the heightened procedural protections afforded the criminally accused. For example, a plaintiff can prevail under a preponderance of evidence standard rather than proof beyond a reasonable doubt. Third, although the civil law, like the criminal law, can punish via its potential for imposition of punitive damages, the civil law provides compensation to victims who have been harmed by police misconduct. Recompense is beneficial in itself, and damage awards can spur reform if the costs of misbehavior are high. Fourth, civil lawsuits permit broad discovery of information and may provide a means to uncover police misbehavior and stir public reaction. Finally, the civil law offers various possibilities for framing relief which go beyond punishment or compensation and include remediation. That is, the civil law offers equitable relief, via court injunction and specific orders, that can force a deficient department not only to pay for harm caused but to reform so that the harm is not likely repeated.
15 -Advantage 1: Racial Discrimination
16 -Qualified immunity harms the groups and communities most victimized by police wrongdoing. Crockford ‘15
17 -Kade Crockford, "Militarization of Police and Racial Justice Gone Wrong: The Eurie Stamps Tragedy", ACLU, Speak Freely, 09/29/2015
18 -
19 -Duncan invokes the qualified immunity doctrine, which holds that police officers cannot be sued for conduct that doesn’t clearly violate the law, conduct which at the time appeared reasonable. By that theory, while the actions that preceded the shooting – taking the gun off safety, pointing it at Stamps – were clearly unconstitutional, as soon as Duncan (accidentally) pulled the trigger, he became immune from liability for his conduct. As my colleagues write in a friend-of-the-court brief, the defendant’s argument is dangerous and bizarre. It would, if accepted, produce a legal doctrine that provides incentive for police officers to injure or kill people they have subjected to unconstitutional police practices. It inoculates officers if, but only if, their unreasonable actions cause injury. As applied to the facts of this case, this rule means that an officer who unreasonably aims a firearm at a civilian’s head would incur liability if the civilian is not shot, but not if the firearm discharges and the civilian is killed. Other possibilities abound. For example, if an officer seeks to extract a confession by dangling a suspect over the ledge of a high-rise, the officer will be liable under if he later pulls the suspect back to safety. Yet, under the defendants’ rule, the officer will acquire immunity if his grip should fail and he accidentally – but as a consequence of his prior, intentional, and unreasonable conduct – drops the suspect to this death. A ruling accepting this argument would be terrible and absurd under any circumstances, but particularly given the climate of militarized policing in the United States today – a burden borne disproportionately by Americans with darker skin. Across the nation, police departments armed with military weapons and flash-bang “grenade” bombs barge into people’s homes in the early morning, simply to serve search warrants or arrest suspects. More often than not, these raids are conducted to look for drugs or someone suspected of selling them. An ACLU survey of departments throughout the nation found that 71 percent of the targets of these militarized raids are people of color. Moreover, as my colleagues argue in their brief, Black and Latino people are subjected to more police stops than whites, even when controlling for crime and other factors. Studies show that “race can influence the probability that the police will erroneously harm an innocent person during an encounter.” Other studies “have extensively documented unconscious negative associations about people of color, including an association between Blacks and crime.” Americans are more likely to think Black people holding innocuous objects are holding guns, and to erroneously “shoot” those Black people when given the opportunity. Subjected to more dangerous SWAT raids and police stops, and the targets of racist tropes about criminality and Blackness, people with darker skin are much more likely than whites to suffer the repercussions of unconstitutional policing. Therefore, a legal doctrine establishing that officers cannot be held liable for the final, accidental twitch in a string of unconstitutional actions would further endanger individuals and communities already bearing the brunt of disparate, aggressive policing. It’s our hope that the court will clearly rebuke the defense’s dangerous argument, sending an unmistakable message to police officers throughout the northeast: You will be held liable for your mistakes when the likelihood of making them is compounded by prior illegal actions. You cannot turn the safety off your gun and then illegally point it at someone, only to claim that the final act of shooting them was accidental and so absolves your prior conduct.
20 -Police brutality is a common experience in communities of color.
21 -Coates 2015 - Ta-Nehisi Coates Writer; Journalist; Educator; McArthur Fellow, Between the World and Me. New York: Spiegel and Grau (2015). p. 9 AT
22 -I write you in your fifteenth year. I am writing you because this was the year you saw Eric Garner choked to death for selling cigarettes; because you know now that Renisha McBride was shot for seeking help, that John Crawford was shot down for browsing in a department store. And you have seen men in uniform drive by and murder Tamir Rice, a twelve-year-old child whom they were oath-bound to protect. And you have seen men in the same uniforms pummel Marlene Pinnock, someone’s grandmother, on the side of a road. And you know now, if you did not before, that the police departments of your country have been endowed with the authority to destroy your body. It does not matter if the destruction is the result of an unfortunate overreaction. It does not matter if it originates in a misunderstanding. It does not matter if the destruction springs from a foolish policy. Sell cigarettes without the proper authority and your body can be destroyed. Resent the people trying to entrap your body and it can be destroyed. Turn into a dark stairwell and your body can be destroyed. The destroyers will rarely be held accountable. Mostly they will receive pensions. And destruction is merely the superlative form of a dominion whose prerogatives include friskings, detainings, beatings, and humiliations. All of this is common to black people. And all of this is old for black people. No one is held responsible.
23 -More than 1,100 people a year are killed by police, and it disproportionately affects people of color.
24 -Internationailst 2016 - The Internationalist, “Killer Cops, White Supremacists: Racist Terror Stalks Black America,” The Internationalist. (Summer 2016). Accessed November 1, 2016. http://www.internationalist.org/killercopswstalkblackamerica1507.html AT
25 -As 2014 drew to a close, according to the most detailed account based on publicly published sources, a total of 1,100 people had been killed by the police in the United States.”4 The actual numbers may be much higher, and there are no official figures since the government relies on very partial voluntary reporting by police departments. But the stark reality is that at least three individuals a day had their lives terminated by the forces of “law and order.” The last to die that year was Kevin Davis, a 44-year-old black worker who lived on the outskirts of Decatur, Georgia. Davis had called the police after being stabbed with a knife by an assailant who fled. When the police arrived, first they shot Davis’ dog and then him. When he was taken to the hospital, police refused to let his family have contact with him until he “expired” two days later (Alternet, 27 January).¶ Now we are half-way through 2015, and as of this writing (June 26) at least 549 people have been killed by cops, almost exactly the same rate as last year. Another, more elaborate, database of police killings, “The Counted,” has now been set by the U.S. edition of the British newspaper The Guardian, which includes information on race and ethnicity, gender, age, whether the victim was armed or unarmed, and other details. This tells us that 29 of those killed by police as of June 1 were black, although African Americans are only 13 of the U.S. population; that one-third of the black victims were unarmed, and two-thirds of unarmed people killed by police were members of minorities; that the average age of a person killed by police was 37, that 27 had mental health issues and 95 were men. One-third of the women were killed by police in their own home, as was Tanisha Anderson, killed by Cleveland cops only days before they shot Tamir Rice.
26 -Morality requires a rejection of racism.
27 -Memmi 2000 - Albert Memmi Professor Emeritus of Sociology, U. of Paris, Naiteire, Racism. Minneapolis: University of Minnesota Press. Trans. Steve Martinot (2000). pp. 163-165. AT
28 -The struggle against racism will be long, difficult, without intermission, without remission, probably never achieved. Yet, for this very reason, it is a struggle to be undertaken without surcease and without concessions. One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in other people, which is to diminish what is human. To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. it is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable negativity of the condition of the dominated that is, it illuminates in a certain sense the entire human condition. The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animosity to humanity. In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduit only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a human order, for which racism is the very negation. This is almost a redundancy. One cannot found a moral order, let alone a legislative order, on racism, because racism signifies the exclusion of the other, and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is ‘the truly capital sin. It is not an accident that almost all of humanity’s spiritual traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of course, this is debatable. There are those who think that if one is strong enough, the assault on and oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat others with respect so that they treat you with respect. “Recall.” says the Bible, “that you were once a stranger in Egypt,” which means both that you ought to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and a practical appeal—indeed, it is a contract, however implicit it might be. In short, the refusal of racism is the condition for all theoretical and practical morality because, in the end, the ethical choice commands the political choice, a just society must be a society accepted by all. If this contractual principle is not accepted, then only conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace. True, it is a wager, but the stakes are irresistible.
29 -Racism transcends physical murder and destroys the spirit. It exploits the way that our identities are vulnerable to cultural norms and systemic violence. Reforming the law helps us to prevent the law from rigidifying into inhumane abstraction.
30 -Williams ’87 - Patricia Williams Associate Prof. of Law, CUNY Law School at Queens College, “Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism,” 42 U. Miami L. Rev. 127 (1987) pp. 129-152
31 -The second purpose of this article is to examine racism as a crime, an offense so deeply painful and assaultive as to constitute something I call "spirit-murder." Society is only beginning to recognize that racism is as devastating, as costly, and as psychically obliterating as robbery or assault; indeed they are often the same. Racism resembles other offenses against humanity whose structures are so deeply embedded in culture as to prove extremely resistant to being recognized as forms of oppression.7 It can be as difficult to prove as child abuse or rape, where the victim is forced to convince others that he or she was not at fault, or that the perpetrator was not just "playing around." As in rape cases, victims of racism must prove that they did not distort the circumstances, misunderstand the intent, or even enjoy it.¶ II. CRIMES WITHOUT PASSION¶ A. Eleanor Bumpurs and the Language of Lawmakers¶ On October 29, 1984, Eleanor Bumpurs, a 270-pound, arthritic, sixty-seven year old woman, was shot to death while resisting eviction from her apartment in the Bronx. She was $98.85, or one month, behind in her rent.' New York City Mayor Ed Koch and Police Commissioner Benjamin Ward described the struggle preceding her demise as involving two officers with plastic shields, one officer with a restraining hook, another officer with a shotgun, and at least one supervising officer. All of the officers also carried service revolvers. According to Commissioner Ward, during the course of the attempted eviction Mrs. Bumpurs escaped from the restraining hook twice and wielded a knife that Commissioner Ward says was "bent" on one of the plastic shields. At some point, Officer Stephen Sullivan, the officer positioned farthest away from her, aimed and fired his shotgun. It is alleged that the blast removed half of her hand, so that, according to the Bronx District Attorney's Office, "It was anatomically impossible for her to hold the knife." 9 The officer pumped his gun and shot again, making his mark completely the second time around."10¶ In the two and one-half year wake of this terrible incident, controversy raged as to whether Mrs. Bumpurs ought to have brandished a knife and whether the officer ought to have fired his gun. In February 1987, a New York Supreme Court justice found Officer Sullivan not guilty of manslaughter." The case centered on a very narrow issue of language pitted against circumstance. District Attorney Mario Merola described the case as follows: "Obviously, one shot would have been justified. But if that shot took off part of her hand and rendered her defenseless, whether there was any need for a second shot, which killed her, that's the whole issue of whether you have reasonable force or excessive force."' 2 My intention in the following analysis is to underscore the significant task facing judges and lawyers in undoing institutional descriptions of what is "obvious" and what is not, and in resisting the general predigestion of evidence for jury consumption.¶ Shortly after Mr. Merola's statement, Officer Sullivan's attorney, Bruce Smiry, expressed eagerness to try the case before a jury. 3 Following the heavily publicized attack in Howard Beach, however, he favored a bench trial. In explaining his decision to request a nonjury trial, he stated:¶ I think a judge will be much more likely than a jury to understand the defense that the shooting was justified .... The average lay person might find it difficult to understand why the police were there in the first place, and why a shotgun was employed ... Because of the climate now in the city, I don't want people perceiving this as a racial case. 14¶ Since 1984, Mayor Koch, Commissioner Ward, and a host of other city officials repeatedly have described the shooting of Mrs. Bumpurs as completely legal. 5 At the same time, Commissioner Ward has admitted publicly that Mrs. Bumpurs should not have died. Mayor Koch admitted that her death was the result of "a chain of mistakes and circumstances" that came together in the worst possible way, with the worst possible circumstances.' 6 Commissioner Ward admitted that the officers could have waited for Mrs. Bumpurs to calm down, and that they could have used teargas or mace instead of gunfire. According to Commissioner Ward, however, these observations are made with hindsight. As to whether this shooting of a black woman by a white police officer had racial overtones, he stated that he had "no evidence of racism." 17 Commissioner Ward pointed out that he is sworn to uphold the law, which is "inconsistent with treating blacks differently,"'" and that the shooting was legal because it was within the code of police ethics.19 Finally, city officials have resisted criticism of the police department's handling of the incident by remarking that "outsiders" do not know all of the facts and do not understand the pressure under which officers labor.¶ The root of the word "legal" is the Latin word lex, which means law in a fairly concrete sense-law as we understand it when we refer to written law, codes, and systems of obedience.20 The word lex does not include the more abstract, ethical dimension of law that contemplates the purposes of rules and their effective implementation. This latter meaning is contained in the Latin word jus, from which we derive the word "justice."'" This semantic distinction is not insignificant. The word of law, whether statutory or judicial, is a subcategory of the underlying social motives and beliefs from which it is born. It is the technical embodiment of attempts to order society according to a consensus of ideals. When society loses sight of those ideals and grants obeisance to words alone, law becomes sterile and formalistic; lex is applied without jus and is therefore unjust. The result is compliance with the letter of the law, but not the spirit. A sort of punitive literalism ensues that leads to a high degree of thoughtless conformity. This literalism has, as one of its primary underlying values, order-whose ultimate goal may be justice, but whose immediate end is the ordering of behavior. Living solely by the letter of the law means living without spirit; one can do anything as long as it comports with the law in a technical sense. The cynicism or rebelliousness that infects one's spirit, and the enthusiasm or dissatisfaction with which one conforms is unimportant. Furthermore, this compliance is arbitrary; it is inconsistent with the will of the conformer. The law becomes a battleground of wills. The extent to which technical legalism obfuscates and undermines the human motivations that generate our justice system is the real extent to which we as human beings are disenfranchised.¶ Cultural needs and ideals change with the momentum of time; redefining our laws in keeping with the spirit of cultural flux keeps society alive and humane. In the Bumpurs case, the words of the law called for nonlethal alternatives first, but allowed some officer discretion in determining which situations are so immediately life endangering as to require the use of deadly force.22 This discretionary area was presumably the basis for the claim that Officer Sullivan acted legally. The law as written permitted shooting in general, and therefore, by extension of the city's interpretation of this law, it would be impossible for a police officer ever to shoot someone in a specifically objectionable way.¶ If our laws are thus piano-wired on the exclusive validity of literalism, if they are picked clean of their spirit, then society risks heightened irresponsibility for the consequences of abominable actions. Accordingly, Jonathan Swift's description of lawyers weirdly and ironically comes to life: "There was a Society of Men among us, bred up from their Youth in the Art of proving by words multiplied for the Purpose, that White is Black and Black is White, according as they are paid. To this Society all the rest of the People are Slaves."23 We also risk subjecting ourselves to such absurdly empty rhetoric as Commissioner Ward's comments to the effect that both Mrs. Bumpurs' death and racism were unfortunate, while stating "but the law says .... "24 Commissioner Ward's sentiments might as well read: "The law says ... and therefore the death was unfortunate but irremediable; the law says ... and therefore there is little that can be done about racism." The law thus becomes a shield behind which to avoid responsibility for the human repercussions of both governmental and publicly harmful private activity.25¶ A related issue is the degree to which much of the criticism of the police department's handling of this case was devalued as "noisy" or excessively emotional. It is as though passionate protest were a separate crime, a rudeness of such dimension as to defeat altogether any legitimacy of content. We as lawyers are taught from the moment we enter law school to temper our emotionalism and quash our idealism. We are taught that heartfelt instincts subvert the law and defeat the security of a well-ordered civilization, whereas faithful adherence to the word of law, to stare decisis and clearly stated authority, would as a matter of course lead to a bright, clear world like the Land of Oz, in which those heartfelt instincts would be preserved. Form is exalted over substance, and cool rationales over heated feelings. But we should not be ruled exclusively by the cool formality of language or by emotions. We must be ruled by our complete selves, by the intellectual and emotional content of our words. Governmental representatives must hear the full range of legitimate concerns, no matter how indelicately expressed or painful they may be to hear.¶ But undue literalism is only one type of sleight of tongue in the attainment of meaningless dialogue. Mayor Koch, Commissioner Ward, and Officer Sullivan's defense attorneys have used overgeneralization as an effective rhetorical complement to their avoidance of the issues. For example, allegations that the killing was illegal and unnecessary, and should therefore be prosecuted, were met with responses such as, "The laws permit police officers to shoot people."26 "As long as police officers have guns, there will be unfortunate deaths. '2 7 "The conviction rate in cases like this is very low."'2 8 The observation that teargas would have been an effective alternative to shooting Mrs. Bumpurs drew the dismissive reply that "there were lots of things they could have done."29¶ Privatization of response as a justification for public irresponsibility is a version of the same game. Honed to perfection by President Reagan, this version holds up the private self as indistinguishable from the public "duty and power laden" self. Public officials respond to commentary by the public and the media as though it were meant to hurt private, vulnerable feelings. Trying to hold a public official accountable while not hurting his feelings is a skill the acquisition of which would consume time better spent on almost any conceivable task. Thus, when Commissioner Ward was asked if the internal review board planned to discipline Officer Sullivan, many seemed disposed to accept his response that while he was personally very sorry she had died, he could not understand why the media was focusing on him so much. "How many other police commissioners," he asked repeatedly, "have gotten as much attention as I have?" 30¶ Finally, a most cruel form of semantic slipperiness infused Mrs. Bumpurs' death from the beginning. It is called victim responsibility.3 It is the least responsive form of dialogue, yet apparently the easiest to accept as legitimate.¶ All these words, from Commissioner Ward, from the Mayor's office, from the media, and from the public generally, have rumbled and resounded with the sounds of discourse. We want to believe that their symmetrical, pleasing structure is the equivalent of discourse. If we are not careful, we will hypnotize ourselves into believing that it is discourse.¶ B. Howard Beach and the "Private Property" of Neighborhood ¶ In the early morning hours of December 20, 1986, three young black men left their stalled car on Cross Bay Parkway, in the New York City borough of Queens, and went to look for help. They walked into the neighborhood of Howard Beach, entered a pizzeria, ordered pizzas, and sat down to eat. An anonymous caller to the police reported their presence as "black troublemakers." A patrol car came, found no trouble, and left. After the young men had eaten, they left the pizzeria and were immediately surrounded by a group of eight to ten white teenagers who taunted them with racial epithets. The white youths chased the black men for about three miles, catching them at several points and beating them severely. One of the black men died as a result of being struck by a car as he tried to flee across a highway. Another suffered permanent blindness in one eye.32¶ In the extremely heated public controversy that ensued, as much attention centered on the community of Howard Beach as on the assailants themselves. A veritable Greek chorus formed, comprised of the defendants' lawyers and resident after resident after resident of Howard Beach, all repeating and repeating and repeating that the mere presence of three black men in that part of town at that time of night was reason enough to drive them out. "They had to be starting trouble."33 "We're a strictly white neighborhood."34 "What were they doing here in the first place?"35¶ Although the immensely segregationist instincts behind such statements may be fairly evident, it is worth making explicit some of the presuppositions behind such ululations.¶ Everyone who lives here is white.¶ No black could live here.¶ No one here has a black friend.¶ No white would employ a black here.¶ No black is permitted to shop here.¶ No black is ever up to any good.¶ These presuppositions themselves are premised on lethal philosophies of life.¶ 1. "IT'S BETTER TO BE SAFE THAN SORRY"¶ "Are we supposed to stand around and do nothing while these blacks come into our area and rob us?" 6 one woman asked a reporter in the wake of the Howard Beach attack. A twenty year old, who had lived in Howard Beach all of his life, said, "We ain't racial .... We just don't want to get robbed."37 The hidden implication of these statements is that to be safe is not to be sorry, and that to be safe is to be white and to be sorry is to be associated with blacks. Safety and sorrow, which are inherently alterable and random, are linked to inalterable essences. The expectation that uncertain conditions are really immutable is a formula for frustration; it is a belief that feeds a sense of powerlessness. The rigid determinism of placing in the disjunctive things that are not in fact disjunctive is a set up for betrayal by the very nature of reality. The national repetition that white neighborhoods are safe and blacks bring sorrow is an incantation of powerlessness. And, as with the upside-down logic of all irrational incantations, it imports a concept of white safety that almost necessarily endangers the lives as well as the rights of blacks.¶ It is also an incantation of innocence and guilt, much related to incantations that affirmative action programs allow presumably "guilty" blacks to displace "innocent" whites.3 " (Even assuming that "innocent whites" were being displaced by blacks, does that make blacks less innocent in the pursuit of education and jobs? If anything, are not blacks more innocent in the scheme of discrimination?) In fact, in the wake of the Howard Beach incident, the police and the press rushed to serve the public's interest in the victims' unsavory "guilty" dispositions. They overlook the fact that racial slurs and attacks "objectify people-the incident could have happened to any black person who was there at that time and place. This is the crucial aspect of the Howard Beach affair that is now being muddied in the media. Bringing up defendants' past arrest records is another way of saying, 'He was a criminal who deserved it.'" Thus, the game of victim responsibility described above is itself a slave to society's stereotypes of good and evil.¶ It does no good, however, to turn race issues into contests for some Holy Grail of innocence. In my youth, segregation and antimiscegenation laws were still on the books in many states. During the lifetimes of my parents and grandparents, and for several hundred years before them, laws prohibited blacks from owning property, voting, and learning to read or write. Blacks were, by constitutional mandate, outlawed from the hopeful, loving expectations that being treated as a whole, rather than three-fifths of a human being can bring. When every resource of a wealthy nation is put to such destructive ends, it will take more than a few generations to mop up the mess. 40¶ We have all inherited that legacy, whether new to this world or new to this country. It survives as powerfully and invisibly reinforcing structures of thought, language, and law. Thus, generalized notions of innocence and guilt have little place in the struggle for transcendence; there is no blame among the living for the dimension of this historic crime, this national tragedy.41 There is, however, responsibility for never forgetting one another's histories, and for making real the psychic obliteration which lives on as a factor in shaping relations, not just between blacks and whites,42 or blacks and blacks,43 but also between whites and whites. Whites must consider how much this history has projected onto blacks the blame for all criminality, and for all of society's ills. It has become the means for keeping white criminality invisible.44¶ 2."DISCRIMINATION DOESN'T HURT AS MUCH AS BEING ASSAULTED" OR "A PREJUDICED SOCIETY IS BETTER THAN A VIOLENT SOCIETY"¶ The attempt to split bias from violence has been this society's most enduring and fatal rationalization. Prejudice does hurt, however, just as the absence of prejudice can nourish and shelter. Discrimination can repel and vilify, ostracize and alienate. White people who do not believe this should try telling everyone they meet that one of their ancestors was black. I had a friend in college who having lived her life as a blonde, grey eyed white person, discovered that she was one-sixteenth black. She began to externalize all the unconscious baggage that "black" bore for her: the self-hatred that is racism. She did not think of herself as a racist (nor had I) but she literally wanted to jump out of her skin, shed her flesh, and start life over again. She confided in me that she felt "fouled" and "betrayed." She also asked me if I had ever felt this way. Her question dredged from some deep corner of my suppressed memory the recollection of feeling precisely that, when at the age of three or so, some white playmates explained to me that God had mixed mud with the pure clay of life in order to make me.¶ In the Vietnamese language, "the word T (toi) ... means 'your servant'; there is no T as such. When you talk to someone, you establish a relationship."4 Such a concept of "self" is a way of experiencing the other, ritualistically sharing the other's essence, and cherishing it. In our culture, seeing and feeling the dimension of harm that results from separating self from "other" requires more work. 46 Very little in our language or our culture encourages or reinforces any attempt to look at others as part of ourselves. With the imperviously divided symmetry of the marketplace, social costs to blacks are simply not seen as costs to whites,47 just as blacks do not share in the advances whites may enjoy.¶ This structure of thought is complicated by the fact that the distancing does not stop with the separation of the white self from the black other. In addition, the cultural domination of blacks by whites means that the black self is placed at a distance even from itself, as in the example of blacks being asked to put themselves in the position of the white shopkeepers who view them.48 So blacks are conditioned from infancy to see in themselves only what others who despise them see. 49¶ It is true that conforming to what others see in us is every child's way of becoming socialized. 50 It is what makes children in our society seem so gullible, so impressionable, so "impolitely" honest, so blindly loyal, and so charming to the ones they imitate.5 Yet this conformity also describes a way of being that relinquishes the power of independent ethical choice. Although such a relinquishment can have quite desirable social consequences, it also presumes a fairly homogeneous social context in which values are shared and enforced collectively. Thus, it is no wonder that western anthropologists and ethnographers, for whom adulthood is manifested by the exercise of independent ethical judgment, so frequently denounce tribal cultures or other collectivist ethics as "childlike."¶ By contrast, our culture constructs some, but not all, selves to be the servants of others. Thus, some "I's" are defined as "your servant," some as "your master." The struggle for the self becomes not a true mirroring of self-in-other, but rather a hierarchically-inspired series of distortions, where some serve without ever being served, some master without ever being mastered, and almost everyone hides from this vernacular domination by clinging to the legally official definition of “I” as meaning "your equal."¶ In such an environment, relinquishing the power of individual ethical judgment to a collective ideal risks psychic violence, an obliteration of the self through domination by an all powerful other. In such an environment, it is essential at some stage that the self be permitted to retreat into itself and make its own decisions with self-love and self-confidence. What links child abuse, the mistreatment of women, and racism is the massive external intrusion into psyche that dominating powers impose to keep the self from ever fully seeing itself.52 Because the self's power resides in another, little faith is placed in the true self, that is, in one's own experiential knowledge. Consequently, the power of children, women and blacks is actually reduced to the "intuitive," rather than the real; social life is necessarily based primarily on the imaginary.53 Furthermore, because it is difficult to affirm constantly with the other the congruence of the self's imagining what the other is really thinking of the self, and because even that correlative effort is usually kept within very limited family, neighborhood, religious, or racial boundaries, encounters cease to be social and become presumptuous, random, and disconnected.¶ This peculiarly distancing standpoint allows dramas, particularly racial ones like Howard Beach, to unfold in scenarios weirdly unrelated to the incidents that generated them. At one end of the spectrum is a laissez faire response that privatizes the self in order to remain unassailably justified. At the other end is a pattern that generalizes individual or particular others into terrifyingly uncontrollable "domains" of public wilderness, against which proscriptive barriers must be built to protect the eternally innocent self.¶ a. Privitizing Innocence¶ The prototypical scenario of the privatized response is as follows: ¶ Cain: Abel's part of town is tough turf.54¶ Abel: It upsets me when you say that; you have never been to my part of town. As a matter of fact, my part of town is a leading supplier of milk and honey.55¶ Cain: The news that I'm upsetting you is too upsetting for me to handle. You were wrong to tell me of your upset because now I'm terribly upset.56¶ Abel: I felt threatened first. Listen to me. Take your distress as a measure of my own and empathize with it. Don't ask me to recant and apologize in order to carry this conversation further.57¶ This type of discourse is problematic because Cain's challenge in calling Abel's turf "tough" is transformed into a discussion of the care with which Abel challenges that statement. While there is certainly an obligation to be careful in addressing others the obligation to protect the feelings of those others gets put above the need to protect one's own. The self becomes subservient to the other, with no reciprocity, and the other becomes a whimsical master. Abel's feelings are deflected in deference to Cain's, and Abel bears the double burden of raising his issue properly and of being responsible for its impact on Cain. Cain is rendered unaccountable for as long as this deflection continues because all the fault is assigned to Abel. Morality and responsiveness thus become dichotomized as Abel drowns in responsibility for valuative quality control, while Cain rests on the higher ground of a value neutral zone.¶ Caught in conversations like this, blacks as well as whites will feel keenly and pressingly circumscribed. Perhaps most people never intend to be racist, oppressive, or insulting. Nevertheless, by describing zones of vulnerability and by setting up fences of rigidified politeness, the unintentional exile of individuals as well as races may be quietly accomplished.¶ b. Publicizing Guilt¶ Another scenario of distancing self from the responsibility for racism is the invention of some great public wilderness of others. In the context of Howard Beach, the specter against which the self must barricade itself is violent: seventeen year old, black males wearing running shoes and hooded sweatshirts. It is this fear of the uncontrollable, overwhelming other that animates many of the more vengefully racist comments from Howard Beach, such as, "We're a strictly white neighborhood.... They had to be starting trouble.” 58¶ These statements set up angry, excluding boundaries. They also imply that the failure to protect and avenge is bad policy, bad statesmanship, and an embarrassment. They raise the stakes beyond the unexpressed rage arising from the incident itself. Like the Cain and Abel example, the need to avenge becomes a separate issue of protocol and etiquette-not a loss of a piece of the self, which is the real cost of real tragedies, but a loss of self-regard. By self-regard, I do not mean self-concept as in self-esteem; I mean that view of the self that is attained by the self stepping outside the self to regard and evaluate the self. It is a process in which the self is watched by an imaginary other, a self-projection of the opinions of real others, where "I" means "your master" and where the designated other's refusal to be dominated is felt as personally assaultive. Thus, the failure to avenge is felt as a loss of self-regard. It is a psychological metaphor for whatever trauma or original assault that constitutes the real loss to the self.59 It is therefore more abstract, more illusory, more constructed, and more invented. Potentially, therefore, it is less powerful than "real" assault, in that with effort it can be unlearned as a source of vulnerability. This is the real message of the attempt to distinguish between prejudice and violence: names, as in the old "sticks and stones" ditty, although undeniably and powerfully influential, can be learned or undone as motivation for future destructive action.6" As long as they are not unlearned, however, the exclusionary power of such free-floating emotions makes its way into the gestalt of prosecutorial and jury decisions and into what the law sees as crime, or as justified, provoked or excusable.61 Law becomes described and enforced in the spirit of our prejudices.62¶ 3. THE EVIDENTIARY RULES OF LEGITIMATING TURF WARS¶ The following passage is a description of the arraignment of three of the white teenagers who were involved in the Howard Beach beatings:¶ The three defense lawyers also tried to cast doubt on the prosecutor's account of the attack. The lawyers questioned why the victims walked all the way to the pizza parlor if, as they said, their mission was to summon help for their car, which broke down three miles away .... At the arraignment, the lawyers said the victims passed two all-night gas stations and several other pizza shops before they reached the one they entered.¶ A check yesterday of area restaurants, motels and gas stations listed in the Queens street directory found two eating establishments, a gas station and a motel that all said they were open and had working pay phones on Friday night.¶ A spokesman for the New York Telephone Company, Jim Crosson, said there are six outdoor pay telephones.., on the way to the pizzeria.63¶ In the first place, lawyers must wonder what relevance this has. Does the answer to any of the issues the defense raised serve to prove that these black men assaulted, robbed, threatened or molested these white men? Does it even prove that the white men reasonably feared such a fate? The investigation into the number of phone booths per mile does not reveal why the white men would fear the black men's presence. Instead, it is relevant to prove that there is no reason a black man should walk or just wander around the community of Howard Beach. This is not semantic detail; it is central to understanding burdensomeness of proof in such cases. It is this unconscious restructuring of burdens of proof into burdens of white over black that permits people who say and who believe that they are not racist to commit and condone crimes of genocidal magnitude. It is easy to rationalize this as linguistically technical, or as society's sorrow. As one of my students said, "I'm so tired of hearing the blacks say that society's done them wrong." Yet these gyrations kill with their razor-toothed presumption. Lawyers are the modern wizards and medicine people who must define this innocent murderousness as crime.¶ Additionally, investigations into "closer" alternatives eclipse the possibility of other explanation. They assume that the young men were not headed for the subway (which was in fact in the same direction as the pizzeria), and further, that black people must have documented reasons for excursioning into white neighborhoods and out of the neighborhoods to which they are supposedly consigned.¶ It is interesting to contrast the implicit requirement of documentation imposed on blacks walking down public streets in Howard Beach with the implicit license of the white officers who burst into the private space of Mrs. Bumpurs' apartment. In the Bumpurs case, lawmakers consistently dismissed the availability of less intrusive options as presumption and idle hindsight.64 This dismissal ignored the fact that police officers have an actual burden of employing the least harmful alternatives. In the context of Howard Beach, however, such an analysis invents and imposes a burden on nonresidents to stay out of strange neighborhoods. It implies harm in the presence of those who do not specifically "own" something there. Both analyses skirt the propriety and necessity of public sector responsibility. Both redefine public accountability in privatized terms. Whether those privatized terms act to restrict or expand accountability is dichotomized according to the race of the actors.¶ Finally, this factualized hypothesizing was part of a news story, not an editorial. "News," in other words, was reduced to hypothesis based on silent premises: they should have used the first phone they encountered; they should have eaten at the first "eating establishment;" they should have gone into a gas station and asked for help; surely they should have had the cash and credit cards to do any of the above or else not travel in strange neighborhoods. In elevating these to relevant issues, however, The New York Times did no more than mirror what was happening in the courtroom.¶ 4. THE APPROPRIATION OF PSYCHIC PROPERTY¶ In an ill-fated trip to the neighborhood of Jamaica, in the borough of Queens, Mayor Koch attempted to soothe tensions by asking a congregation of black churchgoers to understand the disgruntlement of Howard Beach residents about the interracial march by 1400 protesters through "their" streets. He asked them how they would feel if 1400 white people took to the streets of the predominantly black neighborhood of Jamaica.65 This remark, from the chief executive of New York City, accepts and even advocates a remarkable degree of possessiveness about public streets. This possessiveness, moreover, is racially rather than geographically bounded. In effect, Koch was pleading for the acceptance of the privatization of public space. This is the de facto equivalent of segregation. It is exclusion in the guise of deep-moated private property "interests" and "values." In such a characterization, the public nature of the object of discussion, the street, is lost. 66¶ Mayor Koch's question suggests that 1400 black people took to the streets of Howard Beach. In fact, the crowd was integratedblacks, browns, and whites, residents and nonresidents of Howard Beach. Apparently, crowds in New York are subject to the unwritten equivalent of Louisiana's race statutes (which provide that 1/72 black ancestry renders a person black) and to the Ku Klux Klan's "contamination by association" standard ("blacks and white-blacks" was how one resident of Forsythe County, Georgia described an interracial crowd of protesters there).¶ On the other hand, if Mayor Koch intended to direct attention to the inconvenience, noise, and pollution of such a crowd in those small streets, then I am sympathetic. My sympathy is insignificant, however, compared to my recognition of the necessity and propriety of the protestors' spontaneous, demonstrative, peaceful outpouring of rage, sorrow, and pain.¶ If, however, Mayor Koch intended to ask blacks to imagine 1400 angry white people descending on a black community, then I agree, I would be frightened. This image would also conjure up visions of 1400 hooded white people burning crosses, 1400 Nazis marching through Skokie, and 1400 cavalry men riding into American Indian lands. These visions would inspire great fear in me, because of the possibility of grave harm to the residents. But there is a difference, and that is why the purpose of the march is so important. That is why it is so important to distinguish mass protests of violence from organized hate groups that openly threaten violence. By failing to make this distinction, Mayor Koch created the manipulative specter of unspecified mobs sweeping through homes in pursuit of vague and diffusely dangerous ends. From this perspective, he appealed to thoughtlessness, to the pseudoconsolation of hunkering down and bunkering up against the approaching hoards, to a glacially overgeneralized view of the unneighborhooded "public" world.¶ Moreover, the Mayor's comments reveal that he is ignorant of the degree to which the black people have welcomed, endured, and suffered white marchers through their streets. White people have always felt free to cruise through black communities and to treat them possessively. Most black neighborhoods have existed only as long as whites have permitted them to exist. Blacks have been this society's perpetual tenants, sharecroppers, and lessees. Blacks went from being owned by others, to having everything around them owned by others. In a civilization that values private property above all else, this effectuates a devaluation of humanity, a removal of blacks not just from the market, but from the pseudospiritual circle of psychic and civic communion. As illustrated in the microcosm of my experience at the store,67 this limbo of disownedness keeps blacks beyond the pale of those who are entitled to receive the survival gifts of commerce, the property of life, liberty, and happiness, whose fruits our culture places in the marketplace. In this way, blacks are positioned analogically to the rest of society, exactly as they were during slavery or Jim Crow.68¶ There is a subtler level to the enactment of this dispossession. The following story may illustrate more fully what I mean: Not long ago, when I first moved back to New York after some twenty years, I decided to go on a walking tour of Harlem. The tour, which took place on Easter Sunday, was sponsored by the New York Arts Society, and except for myself, was attended exclusively by young, white, urban, professional, real estate speculators. They were pleasant looking, with babies strapped to their backs and balloons in their hands. They all seemed like very nice people.¶ Halfway through the tour, the guide asked the group if they wanted to "go inside some churches." The guide added, "It'll make the tour a little longer, but we'll probably get to see some services going on . . . Easter Sunday in Harlem is quite a show." A casual discussion ensued about the time that this excursion might take.¶ What astonished me was that no one had asked the people in the churches if they minded being stared at like living museums. I wondered what would happen if a group of blue-jeaned blacks were to walk uninvited into a synagogue on Passover or St. Anthony's of Padua in the middle of High Mass. Just to peer, not pray. My overwhelming instinct is that such activity would be seen as disrespectful.¶ Apparently, the disrespect was invisible to this well-educated, affable group of people. They deflected my observations with comments such as, "We just want to look"; "No one will mind"; "There's no harm intended." As well intentioned as they were, I was left with the impression that no one existed for them whom their intentions could not govern.69 Despite the lack of apparent malice in their demeanor,7" it seemed to me that to live so noninteractively is a liability as much as a luxury. To live imperviously to one's impact on others is a fragile privilege, which depends ultimately on the inability of others to make their displeasure known. ¶ III. THE GIFT OF INTELLIGENT RAGE¶ A. Owning the Self in a Disowned World¶ Reflecting on Howard Beach brought to mind a news story from my fragmentary grammar school recollections of the 1960's: a white man acting out of racial motives killed a black man who was working for some civil rights organization or cause. The man was stabbed thirty-nine times, a number which prompted a radio commentator to observe that the point was not just murder, but something beyond.¶ What indeed was the point, if not murder? I wondered what it was that would not die, which could not be killed by the fourth, fifth, or even tenth knife blow; what sort of thing that would not die with the body but lived on in the mind of the murderer. Perhaps, as psychologists have argued, what the murderer was trying to kill was a part of his own mind's image, a part of himself and not a real other. After all, statistically and corporeally, blacks as a group are poor, powerless, and a minority. It is in the minds of whites that blacks become large, threatening, powerful, uncontrollable, ubiquitous, and supernatural.¶ There are certain societies that define the limits of life and death very differently than our own. For example, death may occur long before the body ceases to function, and under the proper circumstances, life may continue for some time after the body is carried to its grave.7 "These non-body-bound, uncompartmentalized ideas recognize the power of spirit, or what we in our secularized society might describe as the dynamism of self as reinterpreted by the perceptions of other.72 These ideas comprehend the fact that a part of ourselves is beyond the control of pure physical will and resides in the sanctuary of those around us. A fundamental part of ourselves and of our dignity is dependent upon the uncontrollable, powerful, external observers who constitute society.73 Surely a part of socialization ought to include a sense of caring responsibility for the images of others that are reposited within us.74¶ Taking the example of the man who was stabbed thirty-nine times out of the context of our compartmentalized legal system, and considering it in the hypothetical framework of a legal system that encompasses and recognizes morality, religion, and psychology, I am moved to see this act as not merely body murder but spirit-murder as well. I see it as spirit-murder, only one of whose manifestations is racism-cultural obliteration, prostitution, abandonment of the elderly and the homeless, and genocide are some of its other guises. I see spirit-murder as no less than the equivalent of body murder.¶ One of the reasons that I fear what I call spirit-murder, or disregard for others whose lives qualitatively depend on our regard, is that its product is a system of formalized distortions of thought. It produces social structures centered around fear and hate; it provides a tumorous outlet for feelings elsewhere unexpressed. 75 For example, when Bernhard Goetz shot four black teenagers in a New York City subway, an acquaintance of mine said that she could understand his fear because it is a "fact" that blacks commit most crimes. What impressed me, beyond the factual inaccuracy of this statement,76 was the reduction of Goetz' crime to "his fear," which I translate to mean her fear. The four teenage victims became all blacks everywhere, and "most crimes" clearly meant that most blacks commit crimes.
32 -
33 -Advantage 2: LGBTQ+ Discrimination
34 -
35 -Police Brutality and discrimination against the LGBTQ+ community is rampant, Mallory et. Al
36 -Mallory, Christy, Amira Hasenbush, and Brad Sears. Law and policy expert at UCLA school of law, specializing in policies impacts on LGBT people "Discrimination and harassment by law enforcement officers in the LGBT community." The Williams Institute (2015).
37 -Discrimination and harassment by law enforcement based on sexual orientation and gender identity is an ongoing and pervasive problem in LGBT communities. Such discrimination impedes effective policing in these communities by breaking down trust, inhibiting communication and preventing officers from effectively protecting and serving the communities they police. While a patchwork of state, local and federal laws provides some protection against certain forms of discrimination, there is no nationwide federal statute that comprehensively and consistently prohibits discrimination based on actual or perceived sexual orientation and gender identity. ∂ This report presents research demonstrating that LGBT individuals and communities face profiling, discrimination and harassment at the hands of law enforcement officers. Data from a wide range of sources show that such harassment and discrimination is greatest for LGBT people of color, transgender persons and youth. Key findings include: ∂ The 9.5 million LGBT Americans are a part of every local and state community, and part of the diverse communities that law enforcement seeks to engage to develop stronger community support and trust. ∂ The United States has had a significant history of mistreatment of LGBT people by law enforcement, including profiling, entrapment, discrimination and harassment by officers; victimization that often was ignored by law enforcement; and discrimination and even blanket exclusions from being hired by law enforcement agencies. The Department of Justice recently summarized this history of discrimination against LGBT people in its brief to the United States Supreme Court in Windsor v. United States. ∂ Discrimination and harassment by law enforcement officers based on sexual orientation and gender identity continues to be pervasive throughout the United States. ∂ • For example, a 2014 report on a national survey of LGBT people and people living with HIV found that 73 of respondents had face-to-face contact with the police in the past five years. Of those respondents, 21 reported encountering hostile attitudes from officers, 14 reported verbal assault by the police, 3 reported sexual harassment and 2 reported physical assault at the hands of law enforcement officers. Police abuse, neglect and misconduct were consistently reported at higher frequencies by respondents of color and transgender and gender nonconforming respondents. ∂ A 2013 report focused on anti-LGBT violence that occurred in the previous year found that of the LGBT violence survivors surveyed who interacted with police, 48 reported that they had experienced police misconduct, including unjustified arrest, use of excessive force and entrapment. Additionally, police officers accounted for 6 of all offenders reported by respondents; of offenders who were personally unknown to the victim, police made up 23. ∂ A 2012 report examining the interactions of law enforcement with Latina transgender women in Los Angeles County found that two-thirds of the women reported that they had been verbally harassed by law enforcement, 21 reported that they had been physically assaulted by law enforcement, and 24 reported that they had been sexually assaulted by law enforcement. ∂ A 2011 study that reported findings from the largest survey of transgender people to date found that 22 of transgender respondents reported that they had been harassed by law enforcement because of bias; and 6 reported having been physically assaulted by an officer. Additionally, nearly half of respondents (46) reported being uncomfortable seeking police assistance.
38 -Overpolicing of LGBTQ+ communities creates a lack of trust in the police which decreases trust, and hurts these communities.
39 -Mallory, Christy, Amira Hasenbush, and Brad Sears. Law and policy expert at UCLA school of law, specializing in policies impacts on LGBT people "Discrimination and harassment by law enforcement officers in the LGBT community." The Williams Institute (2015).
40 -∂ For decades, the LGBT community has been subjected to entrapment, discrimination, harassment, and violence by law enforcement. Recent research indicates that such mistreatment of LGB people, and especially transgender people, is still ongoing. Tensions between law enforcement and the LGBT community can hinder effective policing in several ways. ∂ First, when communities are persistently targeted, profiled and harassed by law enforcement, trust will be lost between the police and the communities they are supposed to protect. For example, a recent study asked gay and bisexual identified men to report how helpful they thought that police would be if called in response to an intimate partner violence incident involving gay or bisexual men. Forty percent of respondents indicated that they believed that contacting the police in such a situation would be unhelpful or very unhelpful, and 59 reported that police would be less helpful to gay or bisexual men experiencing intimate partner violence than to heterosexual women. 120∂ Second, lack of trust due to fear of discrimination, harassment, and violence likely discourages LGBT citizens from working in cooperation with law enforcement. Community willingness to engage with law enforcement is helpful to effective policing, which may seek to combat crime and improve the criminal justice system by involving the community in crime control strategies. For example, the federal Community Oriented Policing Services (COPS) grant program has stated goals of “establishing and implementing innovative programs to increase and enhance proactive crime control and prevention programs involving law enforcement officers and young persons in the community,” 121 and developing “programs designed to increase the level of access to the criminal justice system enjoyed by victims, witnesses and ordinary citizens.” 122 Such innovative programming and access to the justice system are hindered when law enforcement is unable to build trust within the communities it serves. ∂ Third, when communities lack trust and positive interactions with law enforcement, individuals within those communities will likely not come forward to report crimes that they have been a victim of. For example, a 2013 report on hate violence against LGBTQ and HIV- affected communities found that only 56 of survivors reported such incidents to the police. 123 A 2012 report on intimate partner violence in the LGBTQ and HIV-affected communities found that of the 17 of intimate partner violence survivors who reported information about interacting with the police, 54 said that they reported such incidents to law enforcement. 124 This both prevents the effectiveness of policing and puts individuals and communities at risk of continued victimization. ∂ Fourth, law enforcement departments that are hostile towards LGBT citizens are most likely unable to meet the needs of the members of their communities, even if individuals do report crimes to the police. For example, research has found that police officers often will not understand how to react to reports of intimate partner violence between same-sex couples and will therefore arrest the partner who is surviving the abuse or both individuals. A 2012 national report on intimate partner violence in LGBTQ and HIV-affected communities found that among those people who reported intimate partner violence to the police, 28 of the time, the survivor was arrested instead of the abuser. 125 Officers also will sometimes arrest survivors of homophobic or transphobic assaults rather than the attackers. For example, in 2011, CeCe McDonald used deadly force to defend herself against transphobic attacks against her and her friends.126 Despite having injuries that may have demonstrated that she was acting in self- defense, she was arrested on the scene and charged with two counts of second degree murder. 127 Additionally, as mentioned above, over a third of crime victims in Lambda Legal’s survey of LGBT people and people living with HIV reported that their complaints to the police were not fully addressed. 128 When police officers exhibit explicit or underlying homophobia and transphobia, they will not be able to support and help the communities they are supposed to protect and serve.
EntryDate
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1 -2016-11-06 01:01:03.0
Judge
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1 -Adam Bistagne
Opponent
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1 -Harvard Westlake JuCo
ParentRound
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1 -3
Round
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1 -1
Team
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1 -Marlborough Coates Aff
Title
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1 -Nov-Dec-Police Brutality AC
Tournament
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1 -Harvard Westlake
Caselist.CitesClass[4]
Cites
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1 -1AC Police Brutality
2 -Framework
3 -Social institutions must remedy systemic violence.
4 -Young 2009 - Young, Iris Marion Prof. Political Science U. Chicago. "Five faces of oppression." Geographic thought: A praxis perspective (2009): 55-71.
5 -Finally, many groups suffer the oppression of systematic violence. Members of some groups live with the knowledge that they must fear random, unprovoked attacks on their persons or property, which have no motive but to damage, humiliate, or destroy the person. In American society women, Blacks, Asians, Arabs, gay men, and lesbians live under such threats of violence, and in at least some regions Jews, Puerto Ricans, Chicanos, and other Spanish-speaking Americans must fear such violence as well. Physical violence against these groups is shockingly frequent. Rape Crisis Center networks estimate that more than one-third of all American women experience an attempted or successful sexual assault in their lifetimes. Manning Marable (1984, pp. 238–41) catalogues a large number of incidents of racist violence and terror against Blacks in the United States between 1980 and 1982. He cites dozens of incidents of the severe beating, killing, or rape of Blacks by police officers on duty, in which the police involved were acquitted of any wrongdoing. In 1981, moreover, there were at least five hundred documented cases of random white teenage violence against Blacks. Violence against gay men and lesbians is not only common, but has been increasing in the last five years. While the frequency of physical attack on members of these and other racially or sexually marked groups is very disturbing, I also include in this category less severe incidents of harrassment, intimidation, or ridicule simply for the purpose of degrading, humiliating, or stigmatizing group members.¶ Given the frequency of such violence in our society, why are theories of justice usually silent about it? I think the reason is that theorists do not typically take such incidents of violence and harrassment as matters of social injustice. No moral theorist would deny that such acts are very wrong. But unless all immoralities are injustices, they might wonder, why should such acts be interpreted as symptoms of social injustice? Acts of violence or petty harrassment are committed by particular individuals, often extremists, deviants, or the mentally unsound. How then can they be said to involve the sorts of institutional issues I have said are properly the subject of justice?¶ What makes violence a face of oppression is less the particular acts themselves, though these are often utterly horrible, than the social context surrounding them, which makes them possible and even acceptable. What makes violence a phenomenon of social injustice, and not merely an individual moral wrong, is its systemic character, its existence as a social practice.¶ Violence is systemic because it is directed at members of a group simply because they are members of that group. Any woman, for example, has a reason to fear rape. Regardless of what a Black man has done to escape the oppressions of marginality or powerlessness, he lives knowing he is subject to attack or harassment. The oppression of violence consists not only in direct victimization, but in the daily knowledge shared by all members of oppressed groups that they are liable to violation, solely on account of their group identity. Just living under such a threat of attack on oneself or family or friends deprives the oppressed of freedom and dignity, and needlessly expends their energy.¶ Violence is a social practice. It is a social given that everyone knows happens and will happen again. It is always at the horizon of social imagination, even for those who do not perpetrate it. According to the prevailing social logic, some circumstances make such violence more “called for” than others. The idea of rape will occur to many men who pick up a hitchhiking woman; the idea of hounding or teasing a gay man on their dorm floor will occur to many straight male college students. Often several persons inflict the violence together, especially in all-male groupings. Sometimes violators set out looking for people to beat up, rape, or taunt. This rule-bound, social, and often premeditated character makes violence against groups a social practice.¶ Group violence approaches legitimacy, moreover, in the sense that it is tolerated. Often third parties find it unsurprising because it happens frequently and lies as a constant possibility at the horizon of the social imagination. Even when they are caught, those who perpetrate acts of group-directed violence or harrassment often receive light or no punishment. To that extent society renders their acts acceptable.¶ An important aspect of random, systemic violence is its irrationality. Xenophobic violence differs from the violence of states or ruling-class repression. Repressive violence has a rational, albeit evil, motive: rulers use it as a coercive tool to maintain their power. Many accounts of racist, sexist, or homophobic violence attempt to explain its motivation as a desire to maintain group privilege or domination. I do not doubt that fear of violence often functions to keep oppressed groups subordinate, but I do not think xenophobic violence is rationally motivated in the way that, for example, violence against strikers is.¶ On the contrary, the violation of rape, beating, killing, and harrassment of women, people of color, gays, and other marked groups is motivated by fear or hatred of those groups. Sometimes the motive may be a simple will to power, to victimize those marked as vulnerable by the very social fact that they are subject to violence. If so, this motive is secondary in the sense that it depends on a social practice of group violence. Violence-causing fear or hatred of the other at least partly involves insecurities on the part of the violators; its irrationality suggests that unconscious processes are at work. In my Chapter 5 I discuss the logic that makes some groups frightening or hateful by defining them as ugly and loathsome bodies. I offer a psychoanalytic account of the fear and hatred of some groups as bound up with fears of identity loss. I think such unconscious fears account at least partly for the oppression I have here called violence. It may also partly account for cultural imperialism.¶ Cultural imperialism, moreover, itself intersects with violence. The culturally imperialized may reject the dominant meanings and attempt to assert their own subjectivity, or the fact of their cultural difference may put the lie to the dominant culture’s implicit claim to universality. The dissonance generated by such a challenge to the hegemonic cultural meanings can also be a source of irrational violence.¶ Violence is a form of injustice that a distributive understanding of justice seems ill equipped to capture. This may be why contemporary discussions of justice rarely mention it. I have argued that group-directed violence is institutionalized and systemic. To the degree that institutions and social practices encourage, tolerate, or enable the perpetration of violence against members of specific groups, those institutions and practices are unjust and should be reformed. Such reform may require the redistribution of resources or positions, but in large part can come only through a change in cultural images, stereotypes, and the mundane reproduction of relations of dominance and aversion in the gestures of everyday life. I discuss strategies for such change in my Chapter 5.
6 -Plan
7 -Text: The United States Federal Government will limit qualified immunity by removing the “clearly established” standard. Wright ‘15
8 -Wright, Sam public interest lawyer who has spent his career exclusively in nonprofits and government. "Want to Fight Police Misconduct? Reform Qualified Immunity." Above the Law. N.p., 3 Nov. 2015. Web. 08 Nov. 2016.
9 -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?
10 -
11 -Two implications:
12 -1. Supreme Court decisions about qualified immunity are based in interpretations of federal law. Congressional action signals to courts that congress intends to expand police liability. This means there is no judicial resistance because the Supreme Court’s job in interpreting federal law is to effect congress’s intent.
13 -2. No stare decisis disads – Congress is the actor and it has the authority to change the law.
14 -Solvency
15 -Civil lawsuits force police departments to improve policies, training, and oversight.
16 -Worral 04 - John L. Worral Assoc. Prof. of Criminal Justice, CSU San Bernardino; PhD in Political Science from Washington State U., “Chapter 10: Police Officers, Excessive Force, and Civil Liability,” Controversies in Policing. Eds Quint C. Thurman Texas State U., San Marcos and Andrew Giacomazzi Boise State U.. Cincinnati: Anderson Publishing, Lexis Nexis Group. pp. 139-155 (2004). AT
17 -Civil lawsuits can also serve as something of a quality-of-service yardstick against which to measure police officers’ performance. Many important court cases, resulting from a lawsuit being filed against a police officer, supervisor, or agency, have fostered improvements in police training and more responsible law enforcement in general, especially in the area of use of force (Kappeler, 2001). To this end, an important Supreme Court decision was Tennessee v. Garner (1985), which placed serious restrictions on the ability of the police to use deadly force.¶ Changes in public organizations are often akin to “bending granite” (Guyot, 1979); few civil servants enjoy parting with the comforts of tradition. However, lawsuits can give police agencies a strong incentive to change. Alpert and Dunham (1996:244) have stated that “suits against the police that rove inadequate administrative controls, deficient policies, or customs and practices that are improper or illegal, can force the department to correct its specific deficiencies and review all policies, practices, and customs.” While civil lawsuits may be undesirable, they serve an important function, which allows police agencies to grow and evolve to meet the demands placed on them by a changing public.
18 -Two Implications:
19 -1) The AC assumes that most police are indemnified; this only super-charges AC solvency because it bolsters the impetus for institutional reform.
20 -2) Civil litigants don’t have to frequently win their cases for the AC to solve. Arguments about judicial resistance or biased juries are weak defense; higher litigation costs from increasing the frequency of suits and more chances to lose large judgments will spur reform from above.
21 -Civil liability is more effective at settling wrongs than criminal liability. Four warrants.
22 -Geller and Toch ’59 - William A. Geller, JD, (Director of Geller and Associates) and Hans Toch (professor of psychology in the School of Criminal Justice at the University of Albany). “Police Violence: Understanding and Controlling Police Abuse of Force.” Yale University Press, Nov 12, 1959. Google Books.
23 -The main objective of a criminal case is to adjudicate guilt and express societal condemnation of morally culpable individuals. The criminal law is not an effective way to prevent excessive force or to cure systemic misbehavior. Indeed, the use of criminal law to punish police who brutalize, assault, abuse, and even murder citizens represents a failure of preventive measures and, if the misdeeds are wide- spread, signals the need for immediate and thorough internal reform. The criminal law can proceed only against specific wrongdoers and within very circumscribed procedural forms. Criminal law can punish and, in some instances, deter police brutality, but it cannot of itself force fundamental change in how a department is run, supervised, led, and made accountable. Criminal law’s most appropriate application, therefore, is against “bad apples”-individual officers who have committed sanctionable acts. By contrast, the civil law, because of its greater flexibility and scope, has the potential to serve as the instrument of systemic reform. In adjusting rights and settling wrongs, civil remedies generally offer distinct advantages over criminal sanctions. First, a victim of police misconduct can sue on his or her own behalf and need not await the government’s decision to go forward. Second, an injured party need not overcome the heightened procedural protections afforded the criminally accused. For example, a plaintiff can prevail under a preponderance of evidence standard rather than proof beyond a reasonable doubt. Third, although the civil law, like the criminal law, can punish via its potential for imposition of punitive damages, the civil law provides compensation to victims who have been harmed by police misconduct. Recompense is beneficial in itself, and damage awards can spur reform if the costs of misbehavior are high. Fourth, civil lawsuits permit broad discovery of information and may provide a means to uncover police misbehavior and stir public reaction. Finally, the civil law offers various possibilities for framing relief which go beyond punishment or compensation and include remediation. That is, the civil law offers equitable relief, via court injunction and specific orders, that can force a deficient department not only to pay for harm caused but to reform so that the harm is not likely repeated.
24 -
25 -The implication is that It doesn’t matter if there are several ways to address the harms of the AC – Civil Liability is uniquely key to reforming the system even in the face of resistance.
26 -Advantage 1: Racial Discrimination
27 -Qualified immunity harms the groups and communities most victimized by police wrongdoing.
28 -Crockford ’15 - Kade Crockford, "Militarization of Police and Racial Justice Gone Wrong: The Eurie Stamps Tragedy", ACLU, Speak Freely, 09/29/2015
29 -
30 -Duncan invokes the qualified immunity doctrine, which holds that police officers cannot be sued for conduct that doesn’t clearly violate the law, conduct which at the time appeared reasonable. By that theory, while the actions that preceded the shooting – taking the gun off safety, pointing it at Stamps – were clearly unconstitutional, as soon as Duncan (accidentally) pulled the trigger, he became immune from liability for his conduct. As my colleagues write in a friend-of-the-court brief, the defendant’s argument is dangerous and bizarre. It would, if accepted, produce a legal doctrine that provides incentive for police officers to injure or kill people they have subjected to unconstitutional police practices. It inoculates officers if, but only if, their unreasonable actions cause injury. As applied to the facts of this case, this rule means that an officer who unreasonably aims a firearm at a civilian’s head would incur liability if the civilian is not shot, but not if the firearm discharges and the civilian is killed. Other possibilities abound. For example, if an officer seeks to extract a confession by dangling a suspect over the ledge of a high-rise, the officer will be liable under if he later pulls the suspect back to safety. Yet, under the defendants’ rule, the officer will acquire immunity if his grip should fail and he accidentally – but as a consequence of his prior, intentional, and unreasonable conduct – drops the suspect to this death. A ruling accepting this argument would be terrible and absurd under any circumstances, but particularly given the climate of militarized policing in the United States today – a burden borne disproportionately by Americans with darker skin. Across the nation, police departments armed with military weapons and flash-bang “grenade” bombs barge into people’s homes in the early morning, simply to serve search warrants or arrest suspects. More often than not, these raids are conducted to look for drugs or someone suspected of selling them. An ACLU survey of departments throughout the nation found that 71 percent of the targets of these militarized raids are people of color. Moreover, as my colleagues argue in their brief, Black and Latino people are subjected to more police stops than whites, even when controlling for crime and other factors. Studies show that “race can influence the probability that the police will erroneously harm an innocent person during an encounter.” Other studies “have extensively documented unconscious negative associations about people of color, including an association between Blacks and crime.” Americans are more likely to think Black people holding innocuous objects are holding guns, and to erroneously “shoot” those Black people when given the opportunity. Subjected to more dangerous SWAT raids and police stops, and the targets of racist tropes about criminality and Blackness, people with darker skin are much more likely than whites to suffer the repercussions of unconstitutional policing. Therefore, a legal doctrine establishing that officers cannot be held liable for the final, accidental twitch in a string of unconstitutional actions would further endanger individuals and communities already bearing the brunt of disparate, aggressive policing. It’s our hope that the court will clearly rebuke the defense’s dangerous argument, sending an unmistakable message to police officers throughout the northeast: You will be held liable for your mistakes when the likelihood of making them is compounded by prior illegal actions. You cannot turn the safety off your gun and then illegally point it at someone, only to claim that the final act of shooting them was accidental and so absolves your prior conduct.
31 -Police brutality is a common experience in communities of color.
32 -Coates 2015 - Ta-Nehisi Coates Writer; Journalist; Educator; McArthur Fellow, Between the World and Me. New York: Spiegel and Grau (2015). p. 9 AT
33 -I write you in your fifteenth year. I am writing you because this was the year you saw Eric Garner choked to death for selling cigarettes; because you know now that Renisha McBride was shot for seeking help, that John Crawford was shot down for browsing in a department store. And you have seen men in uniform drive by and murder Tamir Rice, a twelve-year-old child whom they were oath-bound to protect. And you have seen men in the same uniforms pummel Marlene Pinnock, someone’s grandmother, on the side of a road. And you know now, if you did not before, that the police departments of your country have been endowed with the authority to destroy your body. It does not matter if the destruction is the result of an unfortunate overreaction. It does not matter if it originates in a misunderstanding. It does not matter if the destruction springs from a foolish policy. Sell cigarettes without the proper authority and your body can be destroyed. Resent the people trying to entrap your body and it can be destroyed. Turn into a dark stairwell and your body can be destroyed. The destroyers will rarely be held accountable. Mostly they will receive pensions. And destruction is merely the superlative form of a dominion whose prerogatives include friskings, detainings, beatings, and humiliations. All of this is common to black people. And all of this is old for black people. No one is held responsible.
34 -More than 1,100 people a year are killed by police, and it disproportionately affects people of color.
35 -Internationailst 2016 - The Internationalist, “Killer Cops, White Supremacists: Racist Terror Stalks Black America,” The Internationalist. (Summer 2016). Accessed November 1, 2016. http://www.internationalist.org/killercopswstalkblackamerica1507.html AT
36 -As 2014 drew to a close, according to the most detailed account based on publicly published sources, a total of 1,100 people had been killed by the police in the United States.”4 The actual numbers may be much higher, and there are no official figures since the government relies on very partial voluntary reporting by police departments. But the stark reality is that at least three individuals a day had their lives terminated by the forces of “law and order.” The last to die that year was Kevin Davis, a 44-year-old black worker who lived on the outskirts of Decatur, Georgia. Davis had called the police after being stabbed with a knife by an assailant who fled. When the police arrived, first they shot Davis’ dog and then him. When he was taken to the hospital, police refused to let his family have contact with him until he “expired” two days later (Alternet, 27 January).¶ Now we are half-way through 2015, and as of this writing (June 26) at least 549 people have been killed by cops, almost exactly the same rate as last year. Another, more elaborate, database of police killings, “The Counted,” has now been set by the U.S. edition of the British newspaper The Guardian, which includes information on race and ethnicity, gender, age, whether the victim was armed or unarmed, and other details. This tells us that 29 of those killed by police as of June 1 were black, although African Americans are only 13 of the U.S. population; that one-third of the black victims were unarmed, and two-thirds of unarmed people killed by police were members of minorities; that the average age of a person killed by police was 37, that 27 had mental health issues and 95 were men. One-third of the women were killed by police in their own home, as was Tanisha Anderson, killed by Cleveland cops only days before they shot Tamir Rice.
37 -Morality requires a rejection of racism.
38 -Memmi 2000 - Albert Memmi Professor Emeritus of Sociology, U. of Paris, Naiteire, Racism. Minneapolis: University of Minnesota Press. Trans. Steve Martinot (2000). pp. 163-165. AT
39 -The struggle against racism will be long, difficult, without intermission, without remission, probably never achieved. Yet, for this very reason, it is a struggle to be undertaken without surcease and without concessions. One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in other people, which is to diminish what is human. To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. it is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable negativity of the condition of the dominated that is, it illuminates in a certain sense the entire human condition. The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animosity to humanity. In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduit only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a human order, for which racism is the very negation. This is almost a redundancy. One cannot found a moral order, let alone a legislative order, on racism, because racism signifies the exclusion of the other, and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is ‘the truly capital sin. It is not an accident that almost all of humanity’s spiritual traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of course, this is debatable. There are those who think that if one is strong enough, the assault on and oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat others with respect so that they treat you with respect. “Recall.” says the Bible, “that you were once a stranger in Egypt,” which means both that you ought to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and a practical appeal—indeed, it is a contract, however implicit it might be. In short, the refusal of racism is the condition for all theoretical and practical morality because, in the end, the ethical choice commands the political choice, a just society must be a society accepted by all. If this contractual principle is not accepted, then only conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace. True, it is a wager, but the stakes are irresistible.
40 -Racism transcends physical murder and destroys the spirit. It exploits the way that our identities are vulnerable to cultural norms and systemic violence. Reforming the law helps us to prevent the law from rigidifying into inhumane abstraction.
41 -Williams ’87 - Patricia Williams Associate Prof. of Law, CUNY Law School at Queens College, “Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism,” 42 U. Miami L. Rev. 127 (1987) pp. 129-152
42 -The second purpose of this article is to examine racism as a crime, an offense so deeply painful and assaultive as to constitute something I call "spirit-murder." Society is only beginning to recognize that racism is as devastating, as costly, and as psychically obliterating as robbery or assault; indeed they are often the same. Racism resembles other offenses against humanity whose structures are so deeply embedded in culture as to prove extremely resistant to being recognized as forms of oppression.7 It can be as difficult to prove as child abuse or rape, where the victim is forced to convince others that he or she was not at fault, or that the perpetrator was not just "playing around." As in rape cases, victims of racism must prove that they did not distort the circumstances, misunderstand the intent, or even enjoy it.¶ II. CRIMES WITHOUT PASSION¶ A. Eleanor Bumpurs and the Language of Lawmakers¶ On October 29, 1984, Eleanor Bumpurs, a 270-pound, arthritic, sixty-seven year old woman, was shot to death while resisting eviction from her apartment in the Bronx. She was $98.85, or one month, behind in her rent.' New York City Mayor Ed Koch and Police Commissioner Benjamin Ward described the struggle preceding her demise as involving two officers with plastic shields, one officer with a restraining hook, another officer with a shotgun, and at least one supervising officer. All of the officers also carried service revolvers. According to Commissioner Ward, during the course of the attempted eviction Mrs. Bumpurs escaped from the restraining hook twice and wielded a knife that Commissioner Ward says was "bent" on one of the plastic shields. At some point, Officer Stephen Sullivan, the officer positioned farthest away from her, aimed and fired his shotgun. It is alleged that the blast removed half of her hand, so that, according to the Bronx District Attorney's Office, "It was anatomically impossible for her to hold the knife." 9 The officer pumped his gun and shot again, making his mark completely the second time around."10¶ In the two and one-half year wake of this terrible incident, controversy raged as to whether Mrs. Bumpurs ought to have brandished a knife and whether the officer ought to have fired his gun. In February 1987, a New York Supreme Court justice found Officer Sullivan not guilty of manslaughter." The case centered on a very narrow issue of language pitted against circumstance. District Attorney Mario Merola described the case as follows: "Obviously, one shot would have been justified. But if that shot took off part of her hand and rendered her defenseless, whether there was any need for a second shot, which killed her, that's the whole issue of whether you have reasonable force or excessive force."' 2 My intention in the following analysis is to underscore the significant task facing judges and lawyers in undoing institutional descriptions of what is "obvious" and what is not, and in resisting the general predigestion of evidence for jury consumption.¶ Shortly after Mr. Merola's statement, Officer Sullivan's attorney, Bruce Smiry, expressed eagerness to try the case before a jury. 3 Following the heavily publicized attack in Howard Beach, however, he favored a bench trial. In explaining his decision to request a nonjury trial, he stated:¶ I think a judge will be much more likely than a jury to understand the defense that the shooting was justified .... The average lay person might find it difficult to understand why the police were there in the first place, and why a shotgun was employed ... Because of the climate now in the city, I don't want people perceiving this as a racial case. 14¶ Since 1984, Mayor Koch, Commissioner Ward, and a host of other city officials repeatedly have described the shooting of Mrs. Bumpurs as completely legal. 5 At the same time, Commissioner Ward has admitted publicly that Mrs. Bumpurs should not have died. Mayor Koch admitted that her death was the result of "a chain of mistakes and circumstances" that came together in the worst possible way, with the worst possible circumstances.' 6 Commissioner Ward admitted that the officers could have waited for Mrs. Bumpurs to calm down, and that they could have used teargas or mace instead of gunfire. According to Commissioner Ward, however, these observations are made with hindsight. As to whether this shooting of a black woman by a white police officer had racial overtones, he stated that he had "no evidence of racism." 17 Commissioner Ward pointed out that he is sworn to uphold the law, which is "inconsistent with treating blacks differently,"'" and that the shooting was legal because it was within the code of police ethics.19 Finally, city officials have resisted criticism of the police department's handling of the incident by remarking that "outsiders" do not know all of the facts and do not understand the pressure under which officers labor.¶ The root of the word "legal" is the Latin word lex, which means law in a fairly concrete sense-law as we understand it when we refer to written law, codes, and systems of obedience.20 The word lex does not include the more abstract, ethical dimension of law that contemplates the purposes of rules and their effective implementation. This latter meaning is contained in the Latin word jus, from which we derive the word "justice."'" This semantic distinction is not insignificant. The word of law, whether statutory or judicial, is a subcategory of the underlying social motives and beliefs from which it is born. It is the technical embodiment of attempts to order society according to a consensus of ideals. When society loses sight of those ideals and grants obeisance to words alone, law becomes sterile and formalistic; lex is applied without jus and is therefore unjust. The result is compliance with the letter of the law, but not the spirit. A sort of punitive literalism ensues that leads to a high degree of thoughtless conformity. This literalism has, as one of its primary underlying values, order-whose ultimate goal may be justice, but whose immediate end is the ordering of behavior. Living solely by the letter of the law means living without spirit; one can do anything as long as it comports with the law in a technical sense. The cynicism or rebelliousness that infects one's spirit, and the enthusiasm or dissatisfaction with which one conforms is unimportant. Furthermore, this compliance is arbitrary; it is inconsistent with the will of the conformer. The law becomes a battleground of wills. The extent to which technical legalism obfuscates and undermines the human motivations that generate our justice system is the real extent to which we as human beings are disenfranchised.¶ Cultural needs and ideals change with the momentum of time; redefining our laws in keeping with the spirit of cultural flux keeps society alive and humane. In the Bumpurs case, the words of the law called for nonlethal alternatives first, but allowed some officer discretion in determining which situations are so immediately life endangering as to require the use of deadly force.22 This discretionary area was presumably the basis for the claim that Officer Sullivan acted legally. The law as written permitted shooting in general, and therefore, by extension of the city's interpretation of this law, it would be impossible for a police officer ever to shoot someone in a specifically objectionable way.¶ If our laws are thus piano-wired on the exclusive validity of literalism, if they are picked clean of their spirit, then society risks heightened irresponsibility for the consequences of abominable actions. Accordingly, Jonathan Swift's description of lawyers weirdly and ironically comes to life: "There was a Society of Men among us, bred up from their Youth in the Art of proving by words multiplied for the Purpose, that White is Black and Black is White, according as they are paid. To this Society all the rest of the People are Slaves."23 We also risk subjecting ourselves to such absurdly empty rhetoric as Commissioner Ward's comments to the effect that both Mrs. Bumpurs' death and racism were unfortunate, while stating "but the law says .... "24 Commissioner Ward's sentiments might as well read: "The law says ... and therefore the death was unfortunate but irremediable; the law says ... and therefore there is little that can be done about racism." The law thus becomes a shield behind which to avoid responsibility for the human repercussions of both governmental and publicly harmful private activity.25¶ A related issue is the degree to which much of the criticism of the police department's handling of this case was devalued as "noisy" or excessively emotional. It is as though passionate protest were a separate crime, a rudeness of such dimension as to defeat altogether any legitimacy of content. We as lawyers are taught from the moment we enter law school to temper our emotionalism and quash our idealism. We are taught that heartfelt instincts subvert the law and defeat the security of a well-ordered civilization, whereas faithful adherence to the word of law, to stare decisis and clearly stated authority, would as a matter of course lead to a bright, clear world like the Land of Oz, in which those heartfelt instincts would be preserved. Form is exalted over substance, and cool rationales over heated feelings. But we should not be ruled exclusively by the cool formality of language or by emotions. We must be ruled by our complete selves, by the intellectual and emotional content of our words. Governmental representatives must hear the full range of legitimate concerns, no matter how indelicately expressed or painful they may be to hear.¶ But undue literalism is only one type of sleight of tongue in the attainment of meaningless dialogue. Mayor Koch, Commissioner Ward, and Officer Sullivan's defense attorneys have used overgeneralization as an effective rhetorical complement to their avoidance of the issues. For example, allegations that the killing was illegal and unnecessary, and should therefore be prosecuted, were met with responses such as, "The laws permit police officers to shoot people."26 "As long as police officers have guns, there will be unfortunate deaths. '2 7 "The conviction rate in cases like this is very low."'2 8 The observation that teargas would have been an effective alternative to shooting Mrs. Bumpurs drew the dismissive reply that "there were lots of things they could have done."29¶ Privatization of response as a justification for public irresponsibility is a version of the same game. Honed to perfection by President Reagan, this version holds up the private self as indistinguishable from the public "duty and power laden" self. Public officials respond to commentary by the public and the media as though it were meant to hurt private, vulnerable feelings. Trying to hold a public official accountable while not hurting his feelings is a skill the acquisition of which would consume time better spent on almost any conceivable task. Thus, when Commissioner Ward was asked if the internal review board planned to discipline Officer Sullivan, many seemed disposed to accept his response that while he was personally very sorry she had died, he could not understand why the media was focusing on him so much. "How many other police commissioners," he asked repeatedly, "have gotten as much attention as I have?" 30¶ Finally, a most cruel form of semantic slipperiness infused Mrs. Bumpurs' death from the beginning. It is called victim responsibility.3 It is the least responsive form of dialogue, yet apparently the easiest to accept as legitimate.¶ All these words, from Commissioner Ward, from the Mayor's office, from the media, and from the public generally, have rumbled and resounded with the sounds of discourse. We want to believe that their symmetrical, pleasing structure is the equivalent of discourse. If we are not careful, we will hypnotize ourselves into believing that it is discourse.¶ B. Howard Beach and the "Private Property" of Neighborhood ¶ In the early morning hours of December 20, 1986, three young black men left their stalled car on Cross Bay Parkway, in the New York City borough of Queens, and went to look for help. They walked into the neighborhood of Howard Beach, entered a pizzeria, ordered pizzas, and sat down to eat. An anonymous caller to the police reported their presence as "black troublemakers." A patrol car came, found no trouble, and left. After the young men had eaten, they left the pizzeria and were immediately surrounded by a group of eight to ten white teenagers who taunted them with racial epithets. The white youths chased the black men for about three miles, catching them at several points and beating them severely. One of the black men died as a result of being struck by a car as he tried to flee across a highway. Another suffered permanent blindness in one eye.32¶ In the extremely heated public controversy that ensued, as much attention centered on the community of Howard Beach as on the assailants themselves. A veritable Greek chorus formed, comprised of the defendants' lawyers and resident after resident after resident of Howard Beach, all repeating and repeating and repeating that the mere presence of three black men in that part of town at that time of night was reason enough to drive them out. "They had to be starting trouble."33 "We're a strictly white neighborhood."34 "What were they doing here in the first place?"35¶ Although the immensely segregationist instincts behind such statements may be fairly evident, it is worth making explicit some of the presuppositions behind such ululations.¶ Everyone who lives here is white.¶ No black could live here.¶ No one here has a black friend.¶ No white would employ a black here.¶ No black is permitted to shop here.¶ No black is ever up to any good.¶ These presuppositions themselves are premised on lethal philosophies of life.¶ 1. "IT'S BETTER TO BE SAFE THAN SORRY"¶ "Are we supposed to stand around and do nothing while these blacks come into our area and rob us?" 6 one woman asked a reporter in the wake of the Howard Beach attack. A twenty year old, who had lived in Howard Beach all of his life, said, "We ain't racial .... We just don't want to get robbed."37 The hidden implication of these statements is that to be safe is not to be sorry, and that to be safe is to be white and to be sorry is to be associated with blacks. Safety and sorrow, which are inherently alterable and random, are linked to inalterable essences. The expectation that uncertain conditions are really immutable is a formula for frustration; it is a belief that feeds a sense of powerlessness. The rigid determinism of placing in the disjunctive things that are not in fact disjunctive is a set up for betrayal by the very nature of reality. The national repetition that white neighborhoods are safe and blacks bring sorrow is an incantation of powerlessness. And, as with the upside-down logic of all irrational incantations, it imports a concept of white safety that almost necessarily endangers the lives as well as the rights of blacks.¶ It is also an incantation of innocence and guilt, much related to incantations that affirmative action programs allow presumably "guilty" blacks to displace "innocent" whites.3 " (Even assuming that "innocent whites" were being displaced by blacks, does that make blacks less innocent in the pursuit of education and jobs? If anything, are not blacks more innocent in the scheme of discrimination?) In fact, in the wake of the Howard Beach incident, the police and the press rushed to serve the public's interest in the victims' unsavory "guilty" dispositions. They overlook the fact that racial slurs and attacks "objectify people-the incident could have happened to any black person who was there at that time and place. This is the crucial aspect of the Howard Beach affair that is now being muddied in the media. Bringing up defendants' past arrest records is another way of saying, 'He was a criminal who deserved it.'" Thus, the game of victim responsibility described above is itself a slave to society's stereotypes of good and evil.¶ It does no good, however, to turn race issues into contests for some Holy Grail of innocence. In my youth, segregation and antimiscegenation laws were still on the books in many states. During the lifetimes of my parents and grandparents, and for several hundred years before them, laws prohibited blacks from owning property, voting, and learning to read or write. Blacks were, by constitutional mandate, outlawed from the hopeful, loving expectations that being treated as a whole, rather than three-fifths of a human being can bring. When every resource of a wealthy nation is put to such destructive ends, it will take more than a few generations to mop up the mess. 40¶ We have all inherited that legacy, whether new to this world or new to this country. It survives as powerfully and invisibly reinforcing structures of thought, language, and law. Thus, generalized notions of innocence and guilt have little place in the struggle for transcendence; there is no blame among the living for the dimension of this historic crime, this national tragedy.41 There is, however, responsibility for never forgetting one another's histories, and for making real the psychic obliteration which lives on as a factor in shaping relations, not just between blacks and whites,42 or blacks and blacks,43 but also between whites and whites. Whites must consider how much this history has projected onto blacks the blame for all criminality, and for all of society's ills. It has become the means for keeping white criminality invisible.44¶ 2."DISCRIMINATION DOESN'T HURT AS MUCH AS BEING ASSAULTED" OR "A PREJUDICED SOCIETY IS BETTER THAN A VIOLENT SOCIETY"¶ The attempt to split bias from violence has been this society's most enduring and fatal rationalization. Prejudice does hurt, however, just as the absence of prejudice can nourish and shelter. Discrimination can repel and vilify, ostracize and alienate. White people who do not believe this should try telling everyone they meet that one of their ancestors was black. I had a friend in college who having lived her life as a blonde, grey eyed white person, discovered that she was one-sixteenth black. She began to externalize all the unconscious baggage that "black" bore for her: the self-hatred that is racism. She did not think of herself as a racist (nor had I) but she literally wanted to jump out of her skin, shed her flesh, and start life over again. She confided in me that she felt "fouled" and "betrayed." She also asked me if I had ever felt this way. Her question dredged from some deep corner of my suppressed memory the recollection of feeling precisely that, when at the age of three or so, some white playmates explained to me that God had mixed mud with the pure clay of life in order to make me.¶ In the Vietnamese language, "the word T (toi) ... means 'your servant'; there is no T as such. When you talk to someone, you establish a relationship."4 Such a concept of "self" is a way of experiencing the other, ritualistically sharing the other's essence, and cherishing it. In our culture, seeing and feeling the dimension of harm that results from separating self from "other" requires more work. 46 Very little in our language or our culture encourages or reinforces any attempt to look at others as part of ourselves. With the imperviously divided symmetry of the marketplace, social costs to blacks are simply not seen as costs to whites,47 just as blacks do not share in the advances whites may enjoy.¶ This structure of thought is complicated by the fact that the distancing does not stop with the separation of the white self from the black other. In addition, the cultural domination of blacks by whites means that the black self is placed at a distance even from itself, as in the example of blacks being asked to put themselves in the position of the white shopkeepers who view them.48 So blacks are conditioned from infancy to see in themselves only what others who despise them see. 49¶ It is true that conforming to what others see in us is every child's way of becoming socialized. 50 It is what makes children in our society seem so gullible, so impressionable, so "impolitely" honest, so blindly loyal, and so charming to the ones they imitate.5 Yet this conformity also describes a way of being that relinquishes the power of independent ethical choice. Although such a relinquishment can have quite desirable social consequences, it also presumes a fairly homogeneous social context in which values are shared and enforced collectively. Thus, it is no wonder that western anthropologists and ethnographers, for whom adulthood is manifested by the exercise of independent ethical judgment, so frequently denounce tribal cultures or other collectivist ethics as "childlike."¶ By contrast, our culture constructs some, but not all, selves to be the servants of others. Thus, some "I's" are defined as "your servant," some as "your master." The struggle for the self becomes not a true mirroring of self-in-other, but rather a hierarchically-inspired series of distortions, where some serve without ever being served, some master without ever being mastered, and almost everyone hides from this vernacular domination by clinging to the legally official definition of “I” as meaning "your equal."¶ In such an environment, relinquishing the power of individual ethical judgment to a collective ideal risks psychic violence, an obliteration of the self through domination by an all powerful other. In such an environment, it is essential at some stage that the self be permitted to retreat into itself and make its own decisions with self-love and self-confidence. What links child abuse, the mistreatment of women, and racism is the massive external intrusion into psyche that dominating powers impose to keep the self from ever fully seeing itself.52 Because the self's power resides in another, little faith is placed in the true self, that is, in one's own experiential knowledge. Consequently, the power of children, women and blacks is actually reduced to the "intuitive," rather than the real; social life is necessarily based primarily on the imaginary.53 Furthermore, because it is difficult to affirm constantly with the other the congruence of the self's imagining what the other is really thinking of the self, and because even that correlative effort is usually kept within very limited family, neighborhood, religious, or racial boundaries, encounters cease to be social and become presumptuous, random, and disconnected.¶ This peculiarly distancing standpoint allows dramas, particularly racial ones like Howard Beach, to unfold in scenarios weirdly unrelated to the incidents that generated them. At one end of the spectrum is a laissez faire response that privatizes the self in order to remain unassailably justified. At the other end is a pattern that generalizes individual or particular others into terrifyingly uncontrollable "domains" of public wilderness, against which proscriptive barriers must be built to protect the eternally innocent self.¶ a. Privitizing Innocence¶ The prototypical scenario of the privatized response is as follows: ¶ Cain: Abel's part of town is tough turf.54¶ Abel: It upsets me when you say that; you have never been to my part of town. As a matter of fact, my part of town is a leading supplier of milk and honey.55¶ Cain: The news that I'm upsetting you is too upsetting for me to handle. You were wrong to tell me of your upset because now I'm terribly upset.56¶ Abel: I felt threatened first. Listen to me. Take your distress as a measure of my own and empathize with it. Don't ask me to recant and apologize in order to carry this conversation further.57¶ This type of discourse is problematic because Cain's challenge in calling Abel's turf "tough" is transformed into a discussion of the care with which Abel challenges that statement. While there is certainly an obligation to be careful in addressing others the obligation to protect the feelings of those others gets put above the need to protect one's own. The self becomes subservient to the other, with no reciprocity, and the other becomes a whimsical master. Abel's feelings are deflected in deference to Cain's, and Abel bears the double burden of raising his issue properly and of being responsible for its impact on Cain. Cain is rendered unaccountable for as long as this deflection continues because all the fault is assigned to Abel. Morality and responsiveness thus become dichotomized as Abel drowns in responsibility for valuative quality control, while Cain rests on the higher ground of a value neutral zone.¶ Caught in conversations like this, blacks as well as whites will feel keenly and pressingly circumscribed. Perhaps most people never intend to be racist, oppressive, or insulting. Nevertheless, by describing zones of vulnerability and by setting up fences of rigidified politeness, the unintentional exile of individuals as well as races may be quietly accomplished.¶ b. Publicizing Guilt¶ Another scenario of distancing self from the responsibility for racism is the invention of some great public wilderness of others. In the context of Howard Beach, the specter against which the self must barricade itself is violent: seventeen year old, black males wearing running shoes and hooded sweatshirts. It is this fear of the uncontrollable, overwhelming other that animates many of the more vengefully racist comments from Howard Beach, such as, "We're a strictly white neighborhood.... They had to be starting trouble.” 58¶ These statements set up angry, excluding boundaries. They also imply that the failure to protect and avenge is bad policy, bad statesmanship, and an embarrassment. They raise the stakes beyond the unexpressed rage arising from the incident itself. Like the Cain and Abel example, the need to avenge becomes a separate issue of protocol and etiquette-not a loss of a piece of the self, which is the real cost of real tragedies, but a loss of self-regard. By self-regard, I do not mean self-concept as in self-esteem; I mean that view of the self that is attained by the self stepping outside the self to regard and evaluate the self. It is a process in which the self is watched by an imaginary other, a self-projection of the opinions of real others, where "I" means "your master" and where the designated other's refusal to be dominated is felt as personally assaultive. Thus, the failure to avenge is felt as a loss of self-regard. It is a psychological metaphor for whatever trauma or original assault that constitutes the real loss to the self.59 It is therefore more abstract, more illusory, more constructed, and more invented. Potentially, therefore, it is less powerful than "real" assault, in that with effort it can be unlearned as a source of vulnerability. This is the real message of the attempt to distinguish between prejudice and violence: names, as in the old "sticks and stones" ditty, although undeniably and powerfully influential, can be learned or undone as motivation for future destructive action.6" As long as they are not unlearned, however, the exclusionary power of such free-floating emotions makes its way into the gestalt of prosecutorial and jury decisions and into what the law sees as crime, or as justified, provoked or excusable.61 Law becomes described and enforced in the spirit of our prejudices.62¶ 3. THE EVIDENTIARY RULES OF LEGITIMATING TURF WARS¶ The following passage is a description of the arraignment of three of the white teenagers who were involved in the Howard Beach beatings:¶ The three defense lawyers also tried to cast doubt on the prosecutor's account of the attack. The lawyers questioned why the victims walked all the way to the pizza parlor if, as they said, their mission was to summon help for their car, which broke down three miles away .... At the arraignment, the lawyers said the victims passed two all-night gas stations and several other pizza shops before they reached the one they entered.¶ A check yesterday of area restaurants, motels and gas stations listed in the Queens street directory found two eating establishments, a gas station and a motel that all said they were open and had working pay phones on Friday night.¶ A spokesman for the New York Telephone Company, Jim Crosson, said there are six outdoor pay telephones.., on the way to the pizzeria.63¶ In the first place, lawyers must wonder what relevance this has. Does the answer to any of the issues the defense raised serve to prove that these black men assaulted, robbed, threatened or molested these white men? Does it even prove that the white men reasonably feared such a fate? The investigation into the number of phone booths per mile does not reveal why the white men would fear the black men's presence. Instead, it is relevant to prove that there is no reason a black man should walk or just wander around the community of Howard Beach. This is not semantic detail; it is central to understanding burdensomeness of proof in such cases. It is this unconscious restructuring of burdens of proof into burdens of white over black that permits people who say and who believe that they are not racist to commit and condone crimes of genocidal magnitude. It is easy to rationalize this as linguistically technical, or as society's sorrow. As one of my students said, "I'm so tired of hearing the blacks say that society's done them wrong." Yet these gyrations kill with their razor-toothed presumption. Lawyers are the modern wizards and medicine people who must define this innocent murderousness as crime.¶ Additionally, investigations into "closer" alternatives eclipse the possibility of other explanation. They assume that the young men were not headed for the subway (which was in fact in the same direction as the pizzeria), and further, that black people must have documented reasons for excursioning into white neighborhoods and out of the neighborhoods to which they are supposedly consigned.¶ It is interesting to contrast the implicit requirement of documentation imposed on blacks walking down public streets in Howard Beach with the implicit license of the white officers who burst into the private space of Mrs. Bumpurs' apartment. In the Bumpurs case, lawmakers consistently dismissed the availability of less intrusive options as presumption and idle hindsight.64 This dismissal ignored the fact that police officers have an actual burden of employing the least harmful alternatives. In the context of Howard Beach, however, such an analysis invents and imposes a burden on nonresidents to stay out of strange neighborhoods. It implies harm in the presence of those who do not specifically "own" something there. Both analyses skirt the propriety and necessity of public sector responsibility. Both redefine public accountability in privatized terms. Whether those privatized terms act to restrict or expand accountability is dichotomized according to the race of the actors.¶ Finally, this factualized hypothesizing was part of a news story, not an editorial. "News," in other words, was reduced to hypothesis based on silent premises: they should have used the first phone they encountered; they should have eaten at the first "eating establishment;" they should have gone into a gas station and asked for help; surely they should have had the cash and credit cards to do any of the above or else not travel in strange neighborhoods. In elevating these to relevant issues, however, The New York Times did no more than mirror what was happening in the courtroom.¶ 4. THE APPROPRIATION OF PSYCHIC PROPERTY¶ In an ill-fated trip to the neighborhood of Jamaica, in the borough of Queens, Mayor Koch attempted to soothe tensions by asking a congregation of black churchgoers to understand the disgruntlement of Howard Beach residents about the interracial march by 1400 protesters through "their" streets. He asked them how they would feel if 1400 white people took to the streets of the predominantly black neighborhood of Jamaica.65 This remark, from the chief executive of New York City, accepts and even advocates a remarkable degree of possessiveness about public streets. This possessiveness, moreover, is racially rather than geographically bounded. In effect, Koch was pleading for the acceptance of the privatization of public space. This is the de facto equivalent of segregation. It is exclusion in the guise of deep-moated private property "interests" and "values." In such a characterization, the public nature of the object of discussion, the street, is lost. 66¶ Mayor Koch's question suggests that 1400 black people took to the streets of Howard Beach. In fact, the crowd was integratedblacks, browns, and whites, residents and nonresidents of Howard Beach. Apparently, crowds in New York are subject to the unwritten equivalent of Louisiana's race statutes (which provide that 1/72 black ancestry renders a person black) and to the Ku Klux Klan's "contamination by association" standard ("blacks and white-blacks" was how one resident of Forsythe County, Georgia described an interracial crowd of protesters there).¶ On the other hand, if Mayor Koch intended to direct attention to the inconvenience, noise, and pollution of such a crowd in those small streets, then I am sympathetic. My sympathy is insignificant, however, compared to my recognition of the necessity and propriety of the protestors' spontaneous, demonstrative, peaceful outpouring of rage, sorrow, and pain.¶ If, however, Mayor Koch intended to ask blacks to imagine 1400 angry white people descending on a black community, then I agree, I would be frightened. This image would also conjure up visions of 1400 hooded white people burning crosses, 1400 Nazis marching through Skokie, and 1400 cavalry men riding into American Indian lands. These visions would inspire great fear in me, because of the possibility of grave harm to the residents. But there is a difference, and that is why the purpose of the march is so important. That is why it is so important to distinguish mass protests of violence from organized hate groups that openly threaten violence. By failing to make this distinction, Mayor Koch created the manipulative specter of unspecified mobs sweeping through homes in pursuit of vague and diffusely dangerous ends. From this perspective, he appealed to thoughtlessness, to the pseudoconsolation of hunkering down and bunkering up against the approaching hoards, to a glacially overgeneralized view of the unneighborhooded "public" world.¶ Moreover, the Mayor's comments reveal that he is ignorant of the degree to which the black people have welcomed, endured, and suffered white marchers through their streets. White people have always felt free to cruise through black communities and to treat them possessively. Most black neighborhoods have existed only as long as whites have permitted them to exist. Blacks have been this society's perpetual tenants, sharecroppers, and lessees. Blacks went from being owned by others, to having everything around them owned by others. In a civilization that values private property above all else, this effectuates a devaluation of humanity, a removal of blacks not just from the market, but from the pseudospiritual circle of psychic and civic communion. As illustrated in the microcosm of my experience at the store,67 this limbo of disownedness keeps blacks beyond the pale of those who are entitled to receive the survival gifts of commerce, the property of life, liberty, and happiness, whose fruits our culture places in the marketplace. In this way, blacks are positioned analogically to the rest of society, exactly as they were during slavery or Jim Crow.68¶ There is a subtler level to the enactment of this dispossession. The following story may illustrate more fully what I mean: Not long ago, when I first moved back to New York after some twenty years, I decided to go on a walking tour of Harlem. The tour, which took place on Easter Sunday, was sponsored by the New York Arts Society, and except for myself, was attended exclusively by young, white, urban, professional, real estate speculators. They were pleasant looking, with babies strapped to their backs and balloons in their hands. They all seemed like very nice people.¶ Halfway through the tour, the guide asked the group if they wanted to "go inside some churches." The guide added, "It'll make the tour a little longer, but we'll probably get to see some services going on . . . Easter Sunday in Harlem is quite a show." A casual discussion ensued about the time that this excursion might take.¶ What astonished me was that no one had asked the people in the churches if they minded being stared at like living museums. I wondered what would happen if a group of blue-jeaned blacks were to walk uninvited into a synagogue on Passover or St. Anthony's of Padua in the middle of High Mass. Just to peer, not pray. My overwhelming instinct is that such activity would be seen as disrespectful.¶ Apparently, the disrespect was invisible to this well-educated, affable group of people. They deflected my observations with comments such as, "We just want to look"; "No one will mind"; "There's no harm intended." As well intentioned as they were, I was left with the impression that no one existed for them whom their intentions could not govern.69 Despite the lack of apparent malice in their demeanor,7" it seemed to me that to live so noninteractively is a liability as much as a luxury. To live imperviously to one's impact on others is a fragile privilege, which depends ultimately on the inability of others to make their displeasure known. ¶ III. THE GIFT OF INTELLIGENT RAGE¶ A. Owning the Self in a Disowned World¶ Reflecting on Howard Beach brought to mind a news story from my fragmentary grammar school recollections of the 1960's: a white man acting out of racial motives killed a black man who was working for some civil rights organization or cause. The man was stabbed thirty-nine times, a number which prompted a radio commentator to observe that the point was not just murder, but something beyond.¶ What indeed was the point, if not murder? I wondered what it was that would not die, which could not be killed by the fourth, fifth, or even tenth knife blow; what sort of thing that would not die with the body but lived on in the mind of the murderer. Perhaps, as psychologists have argued, what the murderer was trying to kill was a part of his own mind's image, a part of himself and not a real other. After all, statistically and corporeally, blacks as a group are poor, powerless, and a minority. It is in the minds of whites that blacks become large, threatening, powerful, uncontrollable, ubiquitous, and supernatural.¶ There are certain societies that define the limits of life and death very differently than our own. For example, death may occur long before the body ceases to function, and under the proper circumstances, life may continue for some time after the body is carried to its grave.7 "These non-body-bound, uncompartmentalized ideas recognize the power of spirit, or what we in our secularized society might describe as the dynamism of self as reinterpreted by the perceptions of other.72 These ideas comprehend the fact that a part of ourselves is beyond the control of pure physical will and resides in the sanctuary of those around us. A fundamental part of ourselves and of our dignity is dependent upon the uncontrollable, powerful, external observers who constitute society.73 Surely a part of socialization ought to include a sense of caring responsibility for the images of others that are reposited within us.74¶ Taking the example of the man who was stabbed thirty-nine times out of the context of our compartmentalized legal system, and considering it in the hypothetical framework of a legal system that encompasses and recognizes morality, religion, and psychology, I am moved to see this act as not merely body murder but spirit-murder as well. I see it as spirit-murder, only one of whose manifestations is racism-cultural obliteration, prostitution, abandonment of the elderly and the homeless, and genocide are some of its other guises. I see spirit-murder as no less than the equivalent of body murder.¶ One of the reasons that I fear what I call spirit-murder, or disregard for others whose lives qualitatively depend on our regard, is that its product is a system of formalized distortions of thought. It produces social structures centered around fear and hate; it provides a tumorous outlet for feelings elsewhere unexpressed. 75 For example, when Bernhard Goetz shot four black teenagers in a New York City subway, an acquaintance of mine said that she could understand his fear because it is a "fact" that blacks commit most crimes. What impressed me, beyond the factual inaccuracy of this statement,76 was the reduction of Goetz' crime to "his fear," which I translate to mean her fear. The four teenage victims became all blacks everywhere, and "most crimes" clearly meant that most blacks commit crimes.
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44 -Advantage 2: LGBTQ+ Discrimination
45 -
46 -Overpolicing of LGBTQ+ communities creates a lack of trust in the police which decreases trust, and hurts these communities.
47 -Mallory, Christy, Amira Hasenbush, and Brad Sears. Law and policy expert at UCLA school of law, specializing in policies impacts on LGBT people "Discrimination and harassment by law enforcement officers in the LGBT community." The Williams Institute (2015).
48 -∂ For decades, the LGBT community has been subjected to entrapment, discrimination, harassment, and violence by law enforcement. Recent research indicates that such mistreatment of LGB people, and especially transgender people, is still ongoing. Tensions between law enforcement and the LGBT community can hinder effective policing in several ways. ∂ First, when communities are persistently targeted, profiled and harassed by law enforcement, trust will be lost between the police and the communities they are supposed to protect. For example, a recent study asked gay and bisexual identified men to report how helpful they thought that police would be if called in response to an intimate partner violence incident involving gay or bisexual men. Forty percent of respondents indicated that they believed that contacting the police in such a situation would be unhelpful or very unhelpful, and 59 reported that police would be less helpful to gay or bisexual men experiencing intimate partner violence than to heterosexual women. 120∂ Second, lack of trust due to fear of discrimination, harassment, and violence likely discourages LGBT citizens from working in cooperation with law enforcement. Community willingness to engage with law enforcement is helpful to effective policing, which may seek to combat crime and improve the criminal justice system by involving the community in crime control strategies.
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1 -2016-11-19 17:41:56.0
Judge
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1 -Mitali Mathur
Opponent
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1 -College Park JZ
ParentRound
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1 -4
Round
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1 -2
Team
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1 -Marlborough Coates Aff
Title
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1 -Nov-Dec-Police Brutality AC v2
Tournament
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1 -Glenbrooks
Caselist.CitesClass[5]
Cites
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1 -AC
2 -Framework
3 -The standard is preserving freedom of expression, which is key to preserving a well-ordered society.
4 -A. Free expression is necessary to support free exchange of ideas.
5 -Larson ’13 - Larson, Robert G. III School of Journalism and Mass Communication, University of Minnesota “Forgetting the First Amendment: How Obscurity-Based Privacy and a Right Be Forgotten Are Incompatible with Free Speech,” Communication Law and Policy 18 (2013): 91-120. MO.
6 -One of the best-known theories supporting the First Amendment right of freedom of expression is themarketplace of ideas. At its core, the marketplace of ideas theory holds that unencumbered free speech is a public good because it enables members of society to evaluate and compare their ideas, beliefs and assumptions.162 In doing so, they are able to exchange incorrect or unsound notions for better ones.163 Although the concept arises from John Milton’s Areopagitica, it was introduced to American First Amendment jurisprudence in 1919 by OliverWendell Holmes Jr.164 In his characteristic eloquence, Justice Holmes encapsulated the concept thusly: If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their
7 -wishes safely can be carried out.165
8 -B. Free speech protects freedom of thought, wise government, and an engaged democratic citizenry.
9 -Brandeis ’27 - Louis Brandeis Supreme Court Justice, concurring in Whitney v. California, 274 U.S. 357 (1927)
10 -This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present, and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. p375¶ Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. n2 They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence p376 coerced by law ~-~- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. ¶ Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. n3 Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. p377 Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. n4 Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
11 -
12 -Contention I: Protecting Dissent
13 -A. Governments can’t be trusted with the power to establish orthodoxy by law. Protection for expression of unpopular beliefs allows us to challenge existing social structures.
14 -Bernstein ’03 - David E. Bernstein Prof., George Mason U. School of Law, “Defending the First Amendment from Antidiscrimination Laws,” 82 North Carolina Law Review 224 (2003).
15 -But even liberal civil libertarians who oppose laissez-faire economics and support civil rights laws have a compelling rejoinder to advocates of censorship. Civil libertarians can recognize that the free marketplace of ideas is imperfect, but still ask the most important question in political economy, "compared to what?" FN62 While much private speech is harmful, wrongheaded or dangerous, it's even more dangerous to put the government in charge of policing it. FN63 The alternative to an unregulated speech marketplace is to permit government censorship, leaving "the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us." FN64 For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the 'fairness' of political debate. As one scholar puts it: freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense. FN65¶ Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As Seventh Circuit Judge Frank Easterbrook wrote in an opinion striking down an anti- pornography statute inspired by academic feminists, "free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech . . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is." FN66 First Amendment scholar John McGinnis likewise notes that "government officials have a natural tendency to suppress speech antithetical to their interests . . . and that the free flow of information related to politics and culture threatens government hierarchies both by rearranging coalitions and revealing facts that will prompt political action." FN67¶ The framers of the American Constitution recognized that government, rather than inherently serving the public interest, is susceptible to capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as "rent-seeking." FN68 The Constitution and Bill of Rights attempted to establish a system of government that would limit such rent-seeking. FN69 The First Amendment's protection of freedom of expression was particularly important in this regard. The Founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways, to promote their own agendas, and/or to repress dissenting opinions. FN70 The Founders' insights have been confirmed by experience around the world, and by modern research into human political behavior by economists and evolutionary psychologists. FN71 Permitting government regulation of information relating to politics or culture would come at a very high price to society. FN72
16 -
17 -B. The exercise of government power is unpredictable. Once the power to censor is granted, it is likely to be turned against its advocates. Progressive academics are most likely to be censored if the protections of the first amendment are weakened.
18 -Bernstein ’03 - David E. Bernstein Prof., George Mason U. School of Law, “Defending the First Amendment from Antidiscrimination Laws,” 82 North Carolina Law Review 224 (2003).
19 -Ironically, protecting freedom of expression from government regulation ultimately will benefit left-wing scholars who support censorship, such as radical feminists and critical race theorists, as much as anyone. These scholars advocate speech regulations while living primarily in the very left-wing academic world, where their views are only marginally out of the mainstream. Yet, if the First Amendment is weakened sufficiently by antidiscrimination law that the government gains the power to suppress speech more broadly, feminists and critical race theorists, as holders of views wildly at variance to those of the public at large, are likely to be among the first victims. FN125 That leftists writing in a society that has long been and continues to be hostile to their ideology FN126 would want to weaken the principle that government may not suppress expression because of hostility to its viewpoint seems counterintuitive, to say the least.¶ Indeed, many critical race scholars and feminists argue that America is innately and irredeemably racist and sexist. FN127 One need not accept this vision to realize that the Critical Race and Radical Feminist Party, if such a thing existed, would not exactly sweep the American electorate anytime soon. FN128 Because many critical race theorists and feminists claim to believe that America is so hostile to their values, they should find constitutional protections against the majority especially meaningful.¶ Indeed, if left-wing professors wish to preserve their own academic freedom, they will need to learn to be more tolerant of those whose speech they currently seek to suppress. For the last several decades, pressure to censor free speech on university campuses has come primarily from the left. The current war against terrorism, and the frequent dissent within the academy to that war, has shifted the dynamic, putting many radical professors on the defensive. The First Amendment, and the values of academic freedom that it has fostered, will protect the vast majority of dissenters, but only because the radical's war against the First Amendment has as yet been largely unsuccessful.¶ Of course, left-wing censors imagine a world in which the government silences only their ideological enemies, and they advocate censorship as an integral part of a much broader scheme for reconstructing society along egalitarian lines. Yet, it should be a cardinal principle of political advocacy that one should not support granting the government regulatory powers that one would not want applied to oneself. This principle would not only reduce hypocrisy, but also remind political activists that politics is unpredictable, driven by power rather than morality. Power given to government is often unexpectedly ultimately used against those who advocated that the power be exercised against others. As William Graham Sumner remarked many years ago:¶ The advocate of government interference takes it for granted that he and his associates will have the administration of their legislative device in their own hands. . . . They never appear to remember that the device, when once set up, will itself be the prize of a struggle; that it will serve one set of purposes as well as another, so that after all the only serious question is: who will get it?" FN129
20 -
21 -C. This is empirically proven. Campus speech codes are often turned against the marginalized groups they are designed to protect.
22 -Strossen ’90 - Nadine Strossen Prof. of Law, NY Law School; President of the ACLU, 1991-2008, “Regulating Speech on Campus: A Modest Proposal?” Duke Law Journal, Vol. 1990:484 (1990). AT
23 -The first reason that laws censoring racist speech may undermine the goal of combating racism flows from the discretion such laws inevitably vest in prosecutors, judges, and the other individuals who implement them. One ironic, even tragic, result of this discretion is that members of minority groups themselves-the very people whom the law is intended to protect-are likely targets of punishment. For example, among the first individuals prosecuted under the British Race Relations Act of 1965 and 67 were black power leaders.368 Their overtly racist messages undoubtedly expressed legitimate anger at real discrimination, yet the statute drew no such fine lines, nor could any similar statute possibly do so. Rather than curbing speech offensive to minorities, this British law instead has been regularly used to curb the speech of blacks, trade unionists, and anti-nuclear activists.369 In perhaps the ultimate irony, this statute, which was intended to restrain the neo-Nazi National Front, instead has barred expression by the Anti-Nazi League.370 ¶ The British experience is not unique. History teaches us that antihate speech laws regularly have been used to oppress racial and other minorities. For example, none of the anti-Semites who were responsible for arousing France against Captain Alfred Dreyfus were ever prosecuted for group libel. But Emile Zola was prosecuted for libeling the French clergy and military in his "J'Accuse," and he had to flee to England to escape punishment.371 Additionally, closer to home, the very doctrines that Professor Lawrence invokes to justify regulating campus hate speech-for example, the fighting words doctrine, upon which he chiefly relies-are particularly threatening to the speech of racial and political minorities. 372 ¶ The general lesson that rules banning hate speech will be used to punish minority group members has proven true in the specific context of campus hate speech regulations. In 1974, in a move aimed at the National Front, the British National Union of Students (NUS) adopted a resolution that representatives of "openly racist and fascist organizations" were to be prevented from speaking on college campuses "by whatever means necessary (including disruption of the meeting)." 373 A substantial motivation for the rule had been to stem an increase in campus anti-Semitism. Ironically, however, following the United Nations' cue,3 74 some British students deemed Zionism a form of racism beyond the bounds of permitted discussion. Accordingly, in 1975 British students invoked the NUS resolution to disrupt speeches by Israelis and Zionists, including the Israeli ambassador to England. The intended target of the NUS resolution, the National Front, applauded this result. However, the NUS itself became disenchanted by this and other unintended consequences of its resolution and repealed it in 1977.375 ¶ The British experience under its campus anti-hate speech rule parallels the experience in the United States under the one such rule that has led to a judicial decision. During the approximately one year that the University of Michigan rule was in effect, there were more than twenty cases of whites charging blacks with racist speech. 376 More importantly, the only two instances in which the rule was invoked to sanction racist speech (as opposed to sexist and other forms of hate speech) involved the punishment of speech by or on behalf of black students. 377 Additionally, the only student who was subjected to a full-fledged disciplinary hearing under the Michigan rule was a black student accused of homophobic and sexist expression.3 78 In seeking clemency from the sanctions imposed following this hearing, the student asserted he had been singled out because of his race and his political views.379 Others who were punished for hate speech under the Michigan rule included several Jewish students accused of engaging in anti-Semitic expression 380 and an Asian-American student accused of making an anti-black comment.38' Likewise, the student who recently brought a lawsuit challenging the University of Connecticut's hate speech policy, under which she had been penalized for an allegedly homophobic remark, was Asian-American. 382 She claimed that, among the other students who had engaged in similar expression, she had been singled out for punishment because of her ethnic background.383
24 -
25 -
26 -Contention II: Free Speech Culture
27 -A. The political correctness movement of the 1990s sought to protect oppressed groups and expand curricula to include more diverse voices. The recent movement on college campuses is focused on preserving the emotional wellbeing of college students, and presumes that young adults are extraordinarily fragile.
28 -Lukianoff and Haidt ’15 - Greg Lukianoff JD, Stanford Law School; president of Foundation for Individual Rights in Education and Jonathan Haidt social psychologist and Professor of Ethical Leadership at New York University's Stern School of Business, “The Coddling of the American Mind,” Atlantic (Web). September 2015. Accessed January 10, 2017. http://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/ AT
29 -Some recent campus actions border on the surreal. In April, at Brandeis University, the Asian American student association sought to raise awareness of microaggressions against Asians through an installation on the steps of an academic hall. The installation gave examples of microaggressions such as “Aren’t you supposed to be good at math?” and “I’m colorblind! I don’t see race.” But a backlash arose among other Asian American students, who felt that the display itself was a microaggression. The association removed the installation, and its president wrote an e-mail to the entire student body apologizing to anyone who was “triggered or hurt by the content of the microaggressions.” ¶ This new climate is slowly being institutionalized, and is affecting what can be said in the classroom, even as a basis for discussion. During the 2014–15 school year, for instance, the deans and department chairs at the 10 University of California system schools were presented by administrators at faculty leader-training sessions with examples of microaggressions. The list of offensive statements included: “America is the land of opportunity” and “I believe the most qualified person should get the job.” ¶ The press has typically described these developments as a resurgence of political correctness. That’s partly right, although there are important differences between what’s happening now and what happened in the 1980s and ’90s. That movement sought to restrict speech (specifically hate speech aimed at marginalized groups), but it also challenged the literary, philosophical, and historical canon, seeking to widen it by including more-diverse perspectives. The current movement is largely about emotional well-being. More than the last, it presumes an extraordinary fragility of the collegiate psyche, and therefore elevates the goal of protecting students from psychological harm. The ultimate aim, it seems, is to turn campuses into “safe spaces” where young adults are shielded from words and ideas that make some uncomfortable. And more than the last, this movement seeks to punish anyone who interferes with that aim, even accidentally. You might call this impulse vindictive protectiveness. It is creating a culture in which everyone must think twice before speaking up, lest they face charges of insensitivity, aggression, or worse.
30 -
31 -B. Historical trends have made students more desirous of protection from danger and demonize ideological opponents.
32 -Lukianoff and Haidt ’15 - Greg Lukianoff JD, Stanford Law School; president of Foundation for Individual Rights in Education and Jonathan Haidt social psychologist and Professor of Ethical Leadership at New York University's Stern School of Business, “The Coddling of the American Mind,” Atlantic (Web). September 2015. Accessed January 10, 2017. http://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/
33 -It’s difficult to know exactly why vindictive protectiveness has burst forth so powerfully in the past few years. The phenomenon may be related to recent changes in the interpretation of federal antidiscrimination statutes (about which more later). But the answer probably involves generational shifts as well. Childhood itself has changed greatly during the past generation. Many Baby Boomers and Gen Xers can remember riding their bicycles around their hometowns, unchaperoned by adults, by the time they were 8 or 9 years old. In the hours after school, kids were expected to occupy themselves, getting into minor scrapes and learning from their experiences. But “free range” childhood became less common in the 1980s. The surge in crime from the ’60s through the early ’90s made Baby Boomer parents more protective than their own parents had been. Stories of abducted children appeared more frequently in the news, and in 1984, images of them began showing up on milk cartons. In response, many parents pulled in the reins and worked harder to keep their children safe.¶ The flight to safety also happened at school. Dangerous play structures were removed from playgrounds; peanut butter was banned from student lunches. After the 1999 Columbine massacre in Colorado, many schools cracked down on bullying, implementing “zero tolerance” policies. In a variety of ways, children born after 1980—the Millennials—got a consistent message from adults: life is dangerous, but adults will do everything in their power to protect you from harm, not just from strangers but from one another as well.¶ These same children grew up in a culture that was (and still is) becoming more politically polarized. Republicans and Democrats have never particularly liked each other, but survey data going back to the 1970s show that on average, their mutual dislike used to be surprisingly mild. Negative feelings have grown steadily stronger, however, particularly since the early 2000s. Political scientists call this process “affective partisan polarization,” and it is a very serious problem for any democracy. As each side increasingly demonizes the other, compromise becomes more difficult. A recent study shows that implicit or unconscious biases are now at least as strong across political parties as they are across races.¶ So it’s not hard to imagine why students arriving on campus today might be more desirous of protection and more hostile toward ideological opponents than in generations past. This hostility, and the self-righteousness fueled by strong partisan emotions, can be expected to add force to any moral crusade. A principle of moral psychology is that “morality binds and blinds.” Part of what we do when we make moral judgments is express allegiance to a team. But that can interfere with our ability to think critically. Acknowledging that the other side’s viewpoint has any merit is risky—your teammates may see you as a traitor.
34 -
35 -C. Regardless of their enforcement, speech codes create a chilling effect and miseducate students about pluralistic democracy.
36 -Lukianoff ’14 - Greg Lukianoff JD, Stanford Law School; president of the Foundation for Individual Rights in Education, Unlearning Liberty: Campus Censorship and the End of American Debate. Encounter Books: Kindle Edition (2014). p. 54
37 -Campus speech codes do, of course, have their defenders. When forced to concede that the codes do not meet First Amendment standards, these defenders often use the same rationalization: “What’s the big deal? Those speech codes are never enforced!” As you have seen already, that assertion is wrong. These codes are enforced, often against unambiguously protected speech. But let’s play the game as if it were true. What is the harm of speech codes if they are merely “on the books”? Plenty. The very existence of these codes poses serious problems. First, they create a “chilling effect”: if people have any reason to fear that they might be punished for offering an opinion, most people will refrain from doing so. This creates a campus atmosphere in which some students won’t talk about important issues, while others share their opinions only around likeminded people. The result is polarization and a failure to develop a deeper understanding of controversial issues. Speech codes are also harmful in and of themselves, because they miseducate students about free speech, their rights, the rights of others, and what it means to live in a pluralistic democracy. Some scholars, including Robert Post, dean of Yale Law School, see education’s role in serving the proper functioning of democracy as the primary reason for the existence of academic freedom and view the academy as a place to instill an understanding of democratic values. 57 It is therefore inexcusable that institutions of higher education, through their unconstitutional speech codes, are teaching students the exact opposite of the lessons they are supposed to be learning about democracy, pluralism, and expression. In other words, by propagating speech codes, universities are lying to their students about what their rights are and misinforming them about how speech relates to the functioning of democracies, thus undermining the very reason for academic freedom. So what lesson have campus speech codes given to a generation or more of students? That censoring certain viewpoints is both constitutionally and morally correct. Ask students today if they believe in free speech, and I suspect most would answer “yes.” But if you dug deeper, you would discover that many students have been so badly misinformed about what it means to live in a free society that they accept selective censorship as a fact of life. They have never learned how crucial hearing a multitude of opinions is to our entire intellectual system. Making the most of free speech is a habit and a discipline that must be taught, and speech codes short-circuit that process.
38 -
39 -D. Free speech values on campus are key to free speech values in society.
40 -Lukianoff ’14 - Greg Lukianoff JD, Stanford Law School; president of the Foundation for Individual Rights in Education, Unlearning Liberty: Campus Censorship and the End of American Debate. Encounter Books: Kindle Edition (2014).
41 -On a cultural level, one of the most effective tools for promoting the practice and benefits of free expression is to cultivate among students and the larger population a simple belief: it is the duty of educated people to seek out debate with those who disagree with them. The idea that you can identify true thinkers by how well they understand the arguments of their opponents appears to have gone out of fashion. Societies that welcome serious discussion, devil’s advocacy, and thought experimentation are more dynamic, exciting, and innovative. As a nation, we need to remember that practices like censorship merely encourage people to stay within their echo chambers and produce narrower, less creative thinkers— and that the rough-and-tumble of meaty deliberation is not only edifying, but even quite fun once you get used to it. We must remember the simple yet essential value of knowing people as they are and understanding what they actually believe, both good and bad. To pretend that we can improve any social problem by simply demanding that people not speak their minds is foolish, and will only lead to an increasingly distorted perception of how the world works. Too many of our future leaders are educated in an atmosphere that actively practices selective censorship and demonstrates little tolerance for free and open discourse. If our ultimate goal is to live in an open, bold, and free society in which people are unafraid to play with ideas— and it should be, for the health of our democracy— we must ensure that the values of free speech and open inquiry are preserved on our nation’s campuses. It will be a long battle, but it is one that we cannot afford to lose. And so the fight goes on. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (p. 256). Encounter Books. Kindle Edition.
42 -
43 -Underview
44 -Hate Speech and Harassment are not Constitutionally Protected
45 -Colleges can craft constitutionally permissible hate speech policies using existing exceptions to 1st Amendment protections or precedents in tort law.
46 -Delgado and Yun ’94 - Richard Delgado Prof. of Law, U. of Colorado and David H. Yun JD 1993, U of Colorado, “Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation,” 82 Cal. L. Rev. 871 (1994). AT
47 -The direct prohibition approach would couple two provisions. The first would prohibit severe, face-to-face invective calculated seriously to disrupt the victim's ability to function in a campus setting. This provision, which must be race-neutral, could be tailored to capture the content of any recognized First Amendment exception, such as fighting words 02 or work- place harassment.1"3 Because of the university's special role and responsibility for the safety and morale of students, even the precaution of working within a recognized exception might not be necessary. 1°4 A second provision would provide enhanced punishment for any campus offense (including the one just described) which was proven to have been committed with a racial motivation. 105 Such a two-step approach would satisfy all current constitutional requirements. It would promote a compelling and legitimate institutional interest.'06 It would not single out particular types of expression, but rather particular types of motivation at the punishment stage.10 7 And it would not abridge rules against content or viewpoint neutrality, since it focuses not on the speaker's message but on its intended effect on the hearer, namely to impair his or her ability to function on campus.¶ Alternatively, a hate speech rule could be patterned after an existing tort, such as intentional infliction of emotional distress or group libel,10 8 with the race of the victim a "special factor" calling for increased protection, as current rules and the Restatement of Torts already provide.' 0 9 Tort law's neutrality and presumptive constitutionality strongly suggest that such an approach would be valid." 0 This suggestion is strengthened by the two Canadian cases, Keegstra and Butler. I" Harm-based rationales for punishing hate speech should be valid if the social injury from the speech outweighs its benefits.
48 -
49 -Universities can restrict speech that creates a hostile environment, there is no need to sabotage free speech protections to do this.
50 -Chemerinsky, Erwin. JD from Harvard Law School, Dean of UC Irvine "Unpleasant speech on campus, even hate speech, is a First Amendment issue." William and Mary Bill of Rights 17 (2009). AJ
51 - The hard question in this area is when does speech cross the line and become harassment. There is the right to say hateful things on the campus of a public university, but there is not a right to threaten someone or create a hostile environment. In some instances, this may require difficult line drawing. But Professor Marcus offers no basis for analyzing how this line should be drawn and instead prescribes an approach that would allow punishing a great deal of speech that is unquestionably protected by the First Amendment. Put another way, any administrator in a public university who tried to follow Professor Marcus's approach would certainly be successfully sued for violating the First Amendment.
52 -
53 -Harassment is not constitutionally protected. The first amendment is wrongly invoked in defending harassment.
54 -Marcus ’08 - Kenneth L. Marcus Chair in Equality and Justice in America, Baruch College School of Public Affairs, The City University of New York; Staff Director, U.S. Commission on Civil Rights (2004-2008); delegated the authority of Assistant Secretary of Education for Civil Rights (2003-2004); General Deputy Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity (2001-2002), “Higher Education, Harassment, and First Amendment Opportunism,” 16 Wm. and Mary Bill Rts. J. 1025 (2008), http://scholarship.law.wm.edu/wmborj/vol16/iss4/5 AT
55 -These incidents highlight a puzzling phenomenon in contemporary constitutional culture. The puzzle has been the relatively recent appearance and eager acceptance, especially in higher education, of First Amendment or academic freedom arguments in areas which had long been beyond their reach. For at least the "first fifteen years of its development," the law of harassment had been well understood to regulate a sphere of constitutionally unprotected, proscribable conduct, even when it incidentally included the use of words.2' Yet in recent years free-speech arguments have become a favorite topic-changing device for defenders of all forms of harassment, 22 especially in post-secondary education where many are especially sensitized to issues of free speech and academic freedom. The tendency to construct harassing conduct as speech has important ramifications since the appearance of the First Amendment, with its powerful array of standards and presumptions, augurs ill for any area of regulation which is brought within its shifting boundaries. As Frederick Schauer put it, "Once the First Amendment shows up, much of the game is over., 23 And indeed, arguably, the game may now be over for harassment law, which is to say, free speech issues may have obtained too much traction in this area to be dismissed out of hand. On the other hand, it remains at best unclear as to whether the First Amendment is even salient as to this area of law.
EntryDate
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1 -2017-01-14 17:17:18.0
Judge
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1 -Nadia Hussein
Opponent
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1 -Chaminade JB
ParentRound
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1 -5
Round
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1 -1
Team
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1 -Marlborough Coates Aff
Title
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1 -Jan-Feb Free Speech AC
Tournament
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1 -Harvard Westlake
Caselist.CitesClass[6]
Cites
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1 -1AC – Pluralism
2 -The standard is maintaining pluralism.
3 -Pluralism is an established fact of democratic society. It is impossible to eradicate diversity of opinion and normatively reprehensible to try. Rawls 2001:
4 -Rawls ’01 - John Rawls Prof. Emeritus, Harvard U. decd., Justice as Fairness: A Restatement. Cambridge: Harvard University Press (2001). p.33-35 AT
5 -11.3 In giving an important place to the idea of an overlapping consensus, we assume the fact of reasonable pluralism to be a permanent condition of a democratic society. Any political conception has a view of the political and social world and relies on certain general facts of political sociology and human psychology. The fact of reasonable pluralism is the first of five such facts that are especially important in justice as fairness.¶ To elaborate: the diversity of religious, philosophical, and moral doctrines found in modern democratic societies is not a mere historical condition that may soon pass away; it is a permanent feature of the public culture of democracy. Under the political and social conditions secured by the basic rights and liberties of free institutions, a diversity of conflicting and irreconcilable yet reasonable comprehensive doctrines will come about and persist, should it not already exist. This fact about free societies is what I call the fact of reasonable pluralism.¶ A second and related general fact is that a continuing shared adherence to one comprehensive doctrine can be maintained only by the oppressive use of state power, with all its official crimes and the inevitable brutality and cruelties, followed by the corruption of religion, philosophy, and science. If we say a political society is a community when it is united in affirming one and the same comprehensive doctrine (recall §7.3), then the oppressive use of state power with these attendant evils is necessary to maintain political community. Let us call this the fact of oppression. In the society of the Middle Ages, more or less united in affirming the Catholic faith, the Inquisition was not an accident; its suppression of heresy was needed to preserve the shared religious belief. The same holds, we suppose, for any comprehensive philosophical and moral doctrine, even secular ones. A society united on a form of utilitarianism, or on the moral views of Kant or Mill, would likewise require the oppressive sanctions of state power to remain so.25¶ A third general fact is that an enduring and secure democratic regime, one not divided by bitter doctrinal disputes and hostile social classes, must be willingly and freely supported by at least a substantial majority of its politically active citizens. Together with the first general fact, this means that to serve as a public basis of justification for a constitutional regime a conception of justice must be one that can be endorsed by widely different and even irreconcilable comprehensive doctrines. Otherwise the regime will not be enduring and secure. This leads us to introduce the idea of a political conception of justice, as specified in §9.
6 -Contention 1: Democratic Citizenship
7 -Sub-Point A: Harms
8 -The world is experiencing a crisis of democratic legitimacy driven by a lack of support among the young for core democratic norms and institutions.
9 -Foa and Mounk ’16 - Roberto Stefan Foa principal investigator of the World Values Survey and fellow of the Laboratory for Comparative Social Research. His writing has appeared in a wide range of journals, books, and publications by the UN, OECD, and World Bank and Yascha Mounk lecturer on political theory in Harvard University’s Government Department and a Carnegie Fellow at New America, a Washington, D.C.–based think tank. His dissertation on the role of personal responsibility in contemporary politics and philosophy will be published by Harvard University Press, and his essays have appeared in Foreign Affairs, the New York Times, and the Wall Street Journal “The Danger of Deconsolidation: The Democratic Disconnect,” Journal of Democracy. Vol. 27, No. 3. (July 2016).
10 -Three decades ago, most scholars simply assumed that the Soviet Union would remain stable. This assumption was suddenly proven false. Today, we have even greater confidence in the durability of the world’s affluent, consolidated democracies. But do we have good grounds for our democratic self-confidence? At first sight, there would seem to be some reason for concern. Over the last three decades, trust in political institutions such as parliaments or the courts has precipitously declined across the established democracies of North America and Western Europe. So has voter turnout. As party identification has weakened and party membership has declined, citizens have become less willing to stick with establishment parties. Instead, voters increasingly endorse single-issue movements, vote for populist candidates, or support “antisystem” parties that define themselves in opposition to the status quo. Even in some of the richest and most politically stable regions of the world, it seems as though democracy is in a state of serious disrepair.¶ Most political scientists, however, have steadfastly declined to view these trends as an indication of structural problems in the functioning of liberal democracy, much less as a threat to its very existence. A wide range of leading scholars, including Ronald Inglehart, Pippa Norris, Christian Welzel, and Russell J. Dalton, have generally interpreted these trends as benign indications of the increasing political sophistication of younger generations of “critical” citizens who are less willing to defer to traditional elites. Keeping with a distinction made by David Easton in 1975, many scholars acknowledge that “government legitimacy,” or support for particular governments, has declined. But they also insist that “regime legitimacy,” or support for democracy as a system of government, remains robust. Thus people may increasingly feel that democracy is not working well in their country or that the government of the day is doing a poor job, but this only makes them all the more appreciative of the fact that liberal democracy allows them to protest the government or vote it out of office. According to this view, democracies such as France, Sweden, and the United States remain as consolidated and stable today as they ever have been.¶ In our view, however, this optimistic interpretation may no longer be tenable. Drawing on data from Waves 3 through 6 of the World Values Surveys (1995–2014), we look at four important types of measures that are clear indicators of regime legitimacy as opposed to government legitimacy: citizens’ express support for the system as a whole; the degree to which they support key institutions of liberal democracy, such as civil rights; their willingness to advance their political causes within the existing political system; and their openness to authoritarian alternatives such as military rule.¶ What we find is deeply concerning. Citizens in a number of supposedly consolidated democracies in North America and Western Europe have not only grown more critical of their political leaders. Rather, they have also become more cynical about the value of democracy as a political system, less hopeful that anything they do might influence public policy, and more willing to express support for authoritarian alternatives. The crisis of democratic legitimacy extends across a much wider set of indicators than previously appreciated.¶ How much importance do citizens of developed countries ascribe to living in a democracy? Among older generations, the devotion to democracy is about as fervent and widespread as one might expect: In the United States, for example, people born during the interwar period consider democratic governance an almost sacred value. When asked to rate on a scale of 1 to 10 how “essential” it is for them “to live in a democracy,” 72 percent of those born before World War II check “10,” the highest value. So do 55 percent of the same cohort in the Netherlands. But, as Figure 1 shows, the millennial generation (those born since 1980) has grown much more indifferent. Only one in three Dutch millennials accords maximal importance to living in a democracy; in the United States, that number is slightly lower, around 30 percent.1¶ The decline in support for democracy is not just a story of the young being more critical than the old; it is, in the language of survey research, owed to a “cohort” effect rather than an “age” effect. Back in 1995, for example, only 16 percent of Americans born in the 1970s (then in their late teens or early twenties) believed that democracy was a “bad” political system for their country. Twenty years later, the number of “antidemocrats” in this same generational cohort had increased by around 4 percentage points, to 20 percent. The next cohort—comprising those born in the 1980s—is even more antidemocratic: In 2011, 24 percent of U.S. millennials (then in their late teens or early twenties) considered democracy to be a “bad” or “very bad” way of running the country. Although this trend was somewhat more moderate in Europe, it was nonetheless significant: In 2011, 13 percent of European youth (aged 16 to 24) expressed such a view, up from 8 percent among the same age group in the mid-1990s (see Figure 2).¶ Public-opinion data thus suggest a significant generational reversal. Not so long ago, young people were much more enthusiastic than older people about democratic values: In the first waves of the World Values Survey, in 1981–84 and 1990–93, young respondents were much keener than their elders on protecting freedom of speech and significantly less likely to embrace political radicalism. Today, the roles have reversed: On the whole, support for political radicalism in North America and Western Europe is higher among the young, and support for freedom of speech lower.2
11 -
12 -There is a disturbing trend of students failing to realize the value of basic democratic norms.
13 -Sanders ’16 - Chris Sanders, Alabama Law Review, 2016, 58 Ala L. Rev, Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities https://www.law.ua.edu/pubs/lrarticles/Volume2058/Issue201/sanders.pdf, p. 172-3 MO
14 -Because Hazelwood, intentionally or otherwise, greatly expanded secondary school officials' powers to censor student speech on a host of topics, college effectively provides many young people with their first taste of largely unfettered free speech rights. If Hazelwood follows students to universities, however, their introduction to a fully functioning free press could be delayed for years longer. This result would be disastrous for the journalism profession, which soon would find its ranks filled with freshly minted journalism school graduates inadequately prepared to pursue controversial stories aggressively and to endure the backlash therefrom. It also likely would exacerbate what appears to be a disturbing trend in American society: the existence of a sizable plurality of citizens who do not understand the importance of free speech rights. A 2004 University of Connecticut survey of more than 112,000 high school students found that 32 of them think the press has "too much freedom" and that 36 believe newspapers should clear their reporting with the government before publication. n116 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). n117 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. 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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16 -Millenials have grown up in an increasingly intolerant society, we have to act now.
17 -Lukianoff and Haidt ’15 - Greg Lukianoff JD, Stanford Law School; president of Foundation for Individual Rights in Education and Jonathan Haidt social psychologist and Professor of Ethical Leadership at New York University's Stern School of Business, “The Coddling of the American Mind,” Atlantic (Web). September 2015. Accessed January 10, 2017. http://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/
18 -It’s difficult to know exactly why vindictive protectiveness has burst forth so powerfully in the past few years. The phenomenon may be related to recent changes in the interpretation of federal antidiscrimination statutes (about which more later). But the answer probably involves generational shifts as well. Childhood itself has changed greatly during the past generation. Many Baby Boomers and Gen Xers can remember riding their bicycles around their hometowns, unchaperoned by adults, by the time they were 8 or 9 years old. In the hours after school, kids were expected to occupy themselves, getting into minor scrapes and learning from their experiences. But “free range” childhood became less common in the 1980s. The surge in crime from the ’60s through the early ’90s made Baby Boomer parents more protective than their own parents had been. Stories of abducted children appeared more frequently in the news, and in 1984, images of them began showing up on milk cartons. In response, many parents pulled in the reins and worked harder to keep their children safe.¶ The flight to safety also happened at school. Dangerous play structures were removed from playgrounds; peanut butter was banned from student lunches. After the 1999 Columbine massacre in Colorado, many schools cracked down on bullying, implementing “zero tolerance” policies. In a variety of ways, children born after 1980—the Millennials—got a consistent message from adults: life is dangerous, but adults will do everything in their power to protect you from harm, not just from strangers but from one another as well.¶ These same children grew up in a culture that was (and still is) becoming more politically polarized. Republicans and Democrats have never particularly liked each other, but survey data going back to the 1970s show that on average, their mutual dislike used to be surprisingly mild. Negative feelings have grown steadily stronger, however, particularly since the early 2000s. Political scientists call this process “affective partisan polarization,” and it is a very serious problem for any democracy. As each side increasingly demonizes the other, compromise becomes more difficult. A recent study shows that implicit or unconscious biases are now at least as strong across political parties as they are across races.¶ So it’s not hard to imagine why students arriving on campus today might be more desirous of protection and more hostile toward ideological opponents than in generations past. This hostility, and the self-righteousness fueled by strong partisan emotions, can be expected to add force to any moral crusade. A principle of moral psychology is that “morality binds and blinds.” Part of what we do when we make moral judgments is express allegiance to a team. But that can interfere with our ability to think critically. Acknowledging that the other side’s viewpoint has any merit is risky—your teammates may see you as a traitor.
19 -
20 -Sub-Point B: Democratic Citizenship
21 -Suppression of speech creates polarization that follows graduates into the real world. Link turns hate speech because forcing racists into open debate before their views solidify means at least some of them will change their minds.
22 -Lukianoff ’14 - Greg Lukianoff JD, Stanford Law School; president of the Foundation for Individual Rights in Education, Unlearning Liberty: Campus Censorship and the End of American Debate. Encounter Books: Kindle Edition (2014).
23 -The potential for this damage to open and free-flowing dialogue does not require that every citizen experience censorship personally. Even a single conspicuous case of punishing speech can have dramatic consequences. This is what we lawyers call “the chilling effect.” If people believe there is any risk of punishment for stating an opinion, most will not bother opening their mouths; and in time, the rules that create this silence become molded into the culture. While few outside the university setting know the reality and scale of campus censorship, students are quite aware of the risks. A study of 24,000 students conducted by the Association of American Colleges and Universities in 2010 revealed that only around 30 percent of college seniors strongly agreed with the statement that “It is safe to have unpopular views on campus.” 17 (The numbers are even worse for faculty, the people who know campus the best: only 16.7 percent of them strongly agreed with the statement.) Meanwhile, the fact that this generation of students is more reticent about sharing their opinions than previous ones has been a subject of scholarly research for over a decade now. 18 So what happens when students get the message that saying the wrong thing can get you in trouble? They do what one would expect: they talk to people they already agree with, keep their mouths shut about important topics in mixed company, and often don’t bother even arguing with the angriest or loudest person in the room (which is a problem even for the loud people, as they may not recognize that the reason why others are deferring to their opinions is not because they are obviously right). The result is a group polarization that follows graduates into the real world. As the sociologist Diana C. Mutz discovered in her book Hearing the Other Side (2006), those with the highest levels of education have the lowest exposure to people with conflicting points of view, while those who have not graduated from high school can claim the most diverse discussion mates. 19 In other words, those most likely to live in the tightest echo chambers are those with the highest level of education. It should be the opposite, shouldn’t it? A good education ought to teach citizens to actively seek out the opinions of intelligent people with whom they disagree, in order to prevent the problem of “confirmation bias.” As students avoid being confronted with new ideas in the one place where it’s the most crucial that they do so, they develop an even greater unreflective certainty that they must be right. The work of Cass Sunstein explores this problem, highlighting decades of research indicating that isolation from diverse points of view can lead to a runaway process of group polarization, extremism, and groupthink. 20 This process further robs people of the intellectual growth that comes from subjecting one’s own ideas to challenges. As the Zen maxim goes, “Great doubt, great awakening. Little doubt, little awakening. No doubt, no awakening.” And this is decidedly not a problem that affects only liberal elites. Damage to the level, scope, and sophistication of debate and discussion harms us all, whether we are liberal, conservative, libertarian, or independent. As Professor Mark Bauerlein observed in his book The Dumbest Generation (2008), campus polarization promotes a low level of intellectual rigor on the part of campus Republicans just as it does for everyone else. 21 When higher education is failing to raise the standards for discussion, the state of dialogue in the nation as a whole is bound to suffer. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (p. 10). Encounter Books. Kindle Edition.
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25 -In a world of hyperpartisanship, universities need to take the lead in fostering debate and discussion— this supercharges the spillover effect.
26 -Lukianoff ’14 - Greg Lukianoff JD, Stanford Law School; president of the Foundation for Individual Rights in Education, Unlearning Liberty: Campus Censorship and the End of American Debate. Encounter Books: Kindle Edition (2014). p. 54
27 -Taken together, the threat of punishment for expressing the wrong thoughts, the omnipresence of codes warning students to be careful about what they say, and the politicized, self-serving redefinition of tolerance and civility all reinforce the social pressure to either half-mindedly agree or avoid vigorous debate altogether. Analysts of higher education have noted this reticence in the “millennial generation,” but they often characterize it as a historical peculiarity, sometimes attributing it to a more “collectivist” ethic that somehow materialized among today’s younger people. Few have considered that this hesitance to debate has been habituated in part through coercion by those in charge— through a perfect storm of feeble free speech rights in K– 12 schooling, a lack of meaningful civics education, and a collegiate environment that makes dissent too risky. The modern academy has the power to move our nation closer to or further from liberty. By threatening or punishing mainstream (and yes, often socially conservative) opinions on campus, academic authorities are dismissing the views of many Americans and silencing important public discussions. They are also marginalizing higher education itself. In this time of hyperpartisanship, universities could help bridge that political gulf by fostering discussions across political and personal divides. If they continue selectively silencing voices they disagree with, however, they will never be trusted to take on that role. Unless speech codes, campus censorship, and the heavy-handed techniques that stifle debate come to an end, the academy cannot expect to be treated as the honest broker we so desperately need in the arena of political and cultural controversy. In fact, until then, the academy won’t deserve that role. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (pp. 243-244). Encounter Books. Kindle Edition.
28 -
29 -Free speech values on campus foster pluralism in society, which internal link turns hate speech disads and outweighs on magnitude because the spillover affects all of society, not just colleges.
30 -Lukianoff ’14 - Greg Lukianoff JD, Stanford Law School; president of the Foundation for Individual Rights in Education, Unlearning Liberty: Campus Censorship and the End of American Debate. Encounter Books: Kindle Edition (2014).
31 -On a cultural level, one of the most effective tools for promoting the practice and benefits of free expression is to cultivate among students and the larger population a simple belief: it is the duty of educated people to seek out debate with those who disagree with them. The idea that you can identify true thinkers by how well they understand the arguments of their opponents appears to have gone out of fashion. Societies that welcome serious discussion, devil’s advocacy, and thought experimentation are more dynamic, exciting, and innovative. As a nation, we need to remember that practices like censorship merely encourage people to stay within their echo chambers and produce narrower, less creative thinkers— and that the rough-and-tumble of meaty deliberation is not only edifying, but even quite fun once you get used to it. We must remember the simple yet essential value of knowing people as they are and understanding what they actually believe, both good and bad. To pretend that we can improve any social problem by simply demanding that people not speak their minds is foolish, and will only lead to an increasingly distorted perception of how the world works. Too many of our future leaders are educated in an atmosphere that actively practices selective censorship and demonstrates little tolerance for free and open discourse. If our ultimate goal is to live in an open, bold, and free society in which people are unafraid to play with ideas— and it should be, for the health of our democracy— we must ensure that the values of free speech and open inquiry are preserved on our nation’s campuses. It will be a long battle, but it is one that we cannot afford to lose. And so the fight goes on.
32 -
33 -Contention 2: Protecting Dissent
34 -Governments can’t be trusted with the power to establish orthodoxy by law. Protection for expression of unpopular beliefs allows us to challenge existing social structures, which better solves for oppressive discourses in the long run.
35 -Bernstein ’03 - David E. Bernstein Prof., George Mason U. School of Law, “Defending the First Amendment from Antidiscrimination Laws,” 82 North Carolina Law Review 224 (2003).
36 -But even liberal civil libertarians who oppose laissez-faire economics and support civil rights laws have a compelling rejoinder to advocates of censorship. Civil libertarians can recognize that the free marketplace of ideas is imperfect, but still ask the most important question in political economy, "compared to what?" FN62 While much private speech is harmful, wrongheaded or dangerous, it's even more dangerous to put the government in charge of policing it. FN63 The alternative to an unregulated speech marketplace is to permit government censorship, leaving "the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us." FN64 For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the 'fairness' of political debate. As one scholar puts it: Freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense. FN65¶ Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As Seventh Circuit Judge Frank Easterbrook wrote in an opinion striking down an anti- pornography statute inspired by academic feminists, "free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech . . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is." FN66 First Amendment scholar John McGinnis likewise notes that "government officials have a natural tendency to suppress speech antithetical to their interests . . . and that the free flow of information related to politics and culture threatens government hierarchies both by rearranging coalitions and revealing facts that will prompt political action." FN67¶ The framers of the American Constitution recognized that government, rather than inherently serving the public interest, is susceptible to capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as "rent-seeking." FN68 The Constitution and Bill of Rights attempted to establish a system of government that would limit such rent-seeking. FN69 The First Amendment's protection of freedom of expression was particularly important in this regard. The Founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways, to promote their own agendas, and/or to repress dissenting opinions. FN70 The Founders' insights have been confirmed by experience around the world, and by modern research into human political behavior by economists and evolutionary psychologists. FN71 Permitting government regulation of information relating to politics or culture would come at a very high price to society. FN72
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38 -Universities suppress controversial speech to keep admissions numbers high and donations pouring in.
39 -Ukueberuwa ’17 - Mene Ukueberuwa Hilton Kramer Fellow in Criticism at The New Criterion and a student outreach coordinator at Heterodox Academy, “Don’t Blame Politics for the Crisis at American Colleges,” New Republic (Web). February 1, 2017. Accessed February 2, 2017.
40 -In focusing on this political cartel effect, however, critics tend to underemphasize the increasing fragility of the universities themselves—the second great factor that has wiped away tolerance for “dangerous” ideas on college campuses since the mid-twentieth century. The schools of a half-century ago were much leaner, with comparatively tiny budgets and administrative staffs, meaning they felt no itch to raise ever-higher funds with each passing minute and no need to keep their image so squeakily clean for the donors. Today, every controversy that arises on campus has the potential to tarnish the image that generations’ worth of administrators have crafted to keep admissions numbers high and donations pouring in—that is, the banner shot of carefree students, tossing a Frisbee on a well-kept lawn with a preternaturally diverse group of their classmates. The president of Yale may find the sight of John Calhoun’s name emblazoned above a dorm building to be offensive. Of more immediate concern, though, would be the drop in applications and tightening of Yale’s famous endowment that would follow from a reinvigorated protest, spurred by his reluctance to chisel Calhoun’s name away.¶ In the balance between encouraging a clash of ideas and prioritizing stability, the rise in power of college administrators has tipped the scales immeasurably. Dr. Jonathan Zimmerman of the University of Pennsylvania, an education historian, told me that the “number of full-time faculty members has consistently declined” since the mid-1960s. He added that administrative growth took off during the same era, with non-teaching staff outnumbering professors from the 1990s onward.¶ Predictably, the administrator-run campus has transitioned from imparting essential knowledge to students toward treating students as customers. Zimmerman took note of the most visible element of the customer-service college: the surge of pricey construction projects such as “climbing gyms and luxury dorms” (although he noted that beneficial services such as mental health counseling have also grown from the same impulse to cater to students).¶ Putting aside these costly services of all sorts, however, the more dangerous development in campus consumerism has taken place in the classroom. In The Dumbest Generation, a 2008 book that is mostly a critique of millennial ignorance, the writer and English professor Mark Bauerlein turns his sights on his fellow members of the academy in a chapter called “The Betrayal of the Mentors.” Bauerlein describes the increasingly common practice of treating students as customers who are always right, rather than offering new perspectives that might expand their worldviews: “If mentors are so keen to recant their expertise, why should students strain to acquire it themselves?” This type of professorial restraint, which lecturers adopt under the pretense of encouraging dialogue, actually diminishes intellection. With no real arguments being made in the classroom, today’s students are likelier to rest upon the easiest reading of any particular subject, never developing a tolerance for unconventional perspectives.¶ This crisis of confidence at colleges—driven by conflict-shy administrators and self-effacing professors—has come to a head in the culture of protest that has developed on American campuses. Once again, political polarization is only one part of the story. Today’s college students are certainly more liberal and more ideologically uniform than their counterparts of the mid-twentieth century. But the focus on the little things that we see in campus protests—as in the movement to suppress insensitive Halloween costumes at Yale in 2015—shows the extent to which the political fervor is being driven by the absence of bigger, richer ideas to seize students’ attention. The New York Times columnist Ross Douthat made this case in a column during the same outburst of protests, which swept through dozens of campuses that fall. “The protesters at Yale and Missouri,” he pointed out, are “dealing with a university system that’s genuinely corrupt, and that’s long relied on rote appeals to the activists’ own left-wing pieties to cloak its utter lack of higher purpose.” In other words, if hollowing out collegiate culture of all of its challenging substance really was just a ploy to dodge controversy and keep the money coming in, then it looks like the strategy has decidedly backfired.¶ Meanwhile, studies are beginning to pile up that show that students are not merely made restless by the lack of challenging substance, but are also left intellectually stunted, never learning to discuss politics, economics, or culture in any terms outside of the narrow lexicon of social justice. Richard E. Redding and William O’Donahue pushed back against the PC curriculum with a 2010 study that challenged the value of identity-centric teaching, and Columbia professor Mark Lilla articulated the same case to a broader audience last November in a New York Times op-ed that called for “The End of Identity Liberalism.”
41 -
42 -The exercise of government power is unpredictable. Progressives are most likely to be censored if the free speech protections are weakened.
43 -Bernstein ’03 - David E. Bernstein Prof., George Mason U. School of Law, “Defending the First Amendment from Antidiscrimination Laws,” 82 North Carolina Law Review 224 (2003).
44 -Ironically, protecting freedom of expression from government regulation ultimately will benefit left-wing scholars who support censorship, such as radical feminists and critical race theorists, as much as anyone. These scholars advocate speech regulations while living primarily in the very left-wing academic world, where their views are only marginally out of the mainstream. Yet, if the First Amendment is weakened sufficiently by antidiscrimination law that the government gains the power to suppress speech more broadly, feminists and critical race theorists, as holders of views wildly at variance to those of the public at large, are likely to be among the first victims. FN125 That leftists writing in a society that has long been and continues to be hostile to their ideology FN126 would want to weaken the principle that government may not suppress expression because of hostility to its viewpoint seems counterintuitive, to say the least.¶ Indeed, many critical race scholars and feminists argue that America is innately and irredeemably racist and sexist. FN127 One need not accept this vision to realize that the Critical Race and Radical Feminist Party, if such a thing existed, would not exactly sweep the American electorate anytime soon. FN128 Because many critical race theorists and feminists claim to believe that America is so hostile to their values, they should find constitutional protections against the majority especially meaningful.¶ Indeed, if left-wing professors wish to preserve their own academic freedom, they will need to learn to be more tolerant of those whose speech they currently seek to suppress. For the last several decades, pressure to censor free speech on university campuses has come primarily from the left. The current war against terrorism, and the frequent dissent within the academy to that war, has shifted the dynamic, putting many radical professors on the defensive. The First Amendment, and the values of academic freedom that it has fostered, will protect the vast majority of dissenters, but only because the radical's war against the First Amendment has as yet been largely unsuccessful.¶ Of course, left-wing censors imagine a world in which the government silences only their ideological enemies, and they advocate censorship as an integral part of a much broader scheme for reconstructing society along egalitarian lines. Yet, it should be a cardinal principle of political advocacy that one should not support granting the government regulatory powers that one would not want applied to oneself. This principle would not only reduce hypocrisy, but also remind political activists that politics is unpredictable, driven by power rather than morality. Power given to government is often unexpectedly ultimately used against those who advocated that the power be exercised against others. As William Graham Sumner remarked many years ago:¶ The advocate of government interference takes it for granted that he and his associates will have the administration of their legislative device in their own hands. . . . They never appear to remember that the device, when once set up, will itself be the prize of a struggle; that it will serve one set of purposes as well as another, so that after all the only serious question is: who will get it?" FN129
45 -
46 -This is empirically proven. Campus speech codes are often turned against the marginalized groups they are designed to protect.
47 -Strossen ’90 - Nadine Strossen Prof. of Law, NY Law School; President of the ACLU, 1991-2008, “Regulating Speech on Campus: A Modest Proposal?” Duke Law Journal, Vol. 1990:484 (1990). AT
48 -The first reason that laws censoring racist speech may undermine the goal of combating racism flows from the discretion such laws inevitably vest in prosecutors, judges, and the other individuals who implement them. One ironic, even tragic, result of this discretion is that members of minority groups themselves-the very people whom the law is intended to protect-are likely targets of punishment. For example, among the first individuals prosecuted under the British Race Relations Act of 1965 and 67 were black power leaders.368 Their overtly racist messages undoubtedly expressed legitimate anger at real discrimination, yet the statute drew no such fine lines, nor could any similar statute possibly do so. Rather than curbing speech offensive to minorities, this British law instead has been regularly used to curb the speech of blacks, trade unionists, and anti-nuclear activists.369 In perhaps the ultimate irony, this statute, which was intended to restrain the neo-Nazi National Front, instead has barred expression by the Anti-Nazi League.370¶ The British experience is not unique. History teaches us that antihate speech laws regularly have been used to oppress racial and other minorities. For example, none of the anti-Semites who were responsible for arousing France against Captain Alfred Dreyfus were ever prosecuted for group libel. But Emile Zola was prosecuted for libeling the French clergy and military in his "J'Accuse," and he had to flee to England to escape punishment.371 Additionally, closer to home, the very doctrines that Professor Lawrence invokes to justify regulating campus hate speech-for example, the fighting words doctrine, upon which he chiefly relies-are particularly threatening to the speech of racial and political minorities. 372¶ The general lesson that rules banning hate speech will be used to punish minority group members has proven true in the specific context of campus hate speech regulations. In 1974, in a move aimed at the National Front, the British National Union of Students (NUS) adopted a resolution that representatives of "openly racist and fascist organizations" were to be prevented from speaking on college campuses "by whatever means necessary (including disruption of the meeting)." 373 A substantial motivation for the rule had been to stem an increase in campus anti-Semitism. Ironically, however, following the United Nations' cue,3 74 some British students deemed Zionism a form of racism beyond the bounds of permitted discussion. Accordingly, in 1975 British students invoked the NUS resolution to disrupt speeches by Israelis and Zionists, including the Israeli ambassador to England. The intended target of the NUS resolution, the National Front, applauded this result. However, the NUS itself became disenchanted by this and other unintended consequences of its resolution and repealed it in 1977.375¶ The British experience under its campus anti-hate speech rule parallels the experience in the United States under the one such rule that has led to a judicial decision. During the approximately one year that the University of Michigan rule was in effect, there were more than twenty cases of whites charging blacks with racist speech. 376 More importantly, the only two instances in which the rule was invoked to sanction racist speech (as opposed to sexist and other forms of hate speech) involved the punishment of speech by or on behalf of black students. 377 Additionally, the only student who was subjected to a full-fledged disciplinary hearing under the Michigan rule was a black student accused of homophobic and sexist expression.3 78 In seeking clemency from the sanctions imposed following this hearing, the student asserted he had been singled out because of his race and his political views.379 Others who were punished for hate speech under the Michigan rule included several Jewish students accused of engaging in anti-Semitic expression 380 and an Asian-American student accused of making an anti-black comment.38' Likewise, the student who recently brought a lawsuit challenging the University of Connecticut's hate speech policy, under which she had been penalized for an allegedly homophobic remark, was Asian-American. 382 She claimed that, among the other students who had engaged in similar expression, she had been singled out for punishment because of her ethnic background.383
49 -Underview
50 -Hate Speech and Harassment are not Constitutionally Protected
51 -Colleges can craft constitutionally permissible hate speech policies using existing exceptions to 1st Amendment protections or precedents in tort law.
52 -Delgado and Yun ’94 - Richard Delgado Prof. of Law, U. of Colorado and David H. Yun JD 1993, U of Colorado, “Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation,” 82 Cal. L. Rev. 871 (1994). AT
53 -The direct prohibition approach would couple two provisions. The first would prohibit severe, face-to-face invective calculated seriously to disrupt the victim's ability to function in a campus setting. This provision, which must be race-neutral, could be tailored to capture the content of any recognized First Amendment exception, such as fighting words 02 or work- place harassment.1"3 Because of the university's special role and responsibility for the safety and morale of students, even the precaution of working within a recognized exception might not be necessary. 1°4 A second provision would provide enhanced punishment for any campus offense (including the one just described) which was proven to have been committed with a racial motivation. 105 Such a two-step approach would satisfy all current constitutional requirements. It would promote a compelling and legitimate institutional interest.'06 It would not single out particular types of expression, but rather particular types of motivation at the punishment stage.10 7 And it would not abridge rules against content or viewpoint neutrality, since it focuses not on the speaker's message but on its intended effect on the hearer, namely to impair his or her ability to function on campus.¶ Alternatively, a hate speech rule could be patterned after an existing tort, such as intentional infliction of emotional distress or group libel,10 8 with the race of the victim a "special factor" calling for increased protection, as current rules and the Restatement of Torts already provide.' 0 9 Tort law's neutrality and presumptive constitutionality strongly suggest that such an approach would be valid." 0 This suggestion is strengthened by the two Canadian cases, Keegstra and Butler. I" Harm-based rationales for punishing hate speech should be valid if the social injury from the speech outweighs its benefits.
54 -
55 -Universities can restrict speech that creates a hostile environment, there is no need to sabotage free speech protections to do this.
56 -Chemerinsky, Erwin. JD from Harvard Law School, Dean of UC Irvine "Unpleasant speech on campus, even hate speech, is a First Amendment issue." William and Mary Bill of Rights 17 (2009). AJ
57 - The hard question in this area is when does speech cross the line and become harassment. There is the right to say hateful things on the campus of a public university, but there is not a right to threaten someone or create a hostile environment. In some instances, this may require difficult line drawing. But Professor Marcus offers no basis for analyzing how this line should be drawn and instead prescribes an approach that would allow punishing a great deal of speech that is unquestionably protected by the First Amendment. Put another way, any administrator in a public university who tried to follow Professor Marcus's approach would certainly be successfully sued for violating the First Amendment.
58 -
59 -Harassment is not constitutionally protected. The first amendment is wrongly invoked in defending harassment.
60 -Marcus ’08 - Kenneth L. Marcus Chair in Equality and Justice in America, Baruch College School of Public Affairs, The City University of New York; Staff Director, U.S. Commission on Civil Rights (2004-2008); delegated the authority of Assistant Secretary of Education for Civil Rights (2003-2004); General Deputy Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity (2001-2002), “Higher Education, Harassment, and First Amendment Opportunism,” 16 Wm. and Mary Bill Rts. J. 1025 (2008), http://scholarship.law.wm.edu/wmborj/vol16/iss4/5 AT
61 -These incidents highlight a puzzling phenomenon in contemporary constitutional culture. The puzzle has been the relatively recent appearance and eager acceptance, especially in higher education, of First Amendment or academic freedom arguments in areas which had long been beyond their reach. For at least the "first fifteen years of its development," the law of harassment had been well understood to regulate a sphere of constitutionally unprotected, proscribable conduct, even when it incidentally included the use of words.2' Yet in recent years free-speech arguments have become a favorite topic-changing device for defenders of all forms of harassment, 22 especially in post-secondary education where many are especially sensitized to issues of free speech and academic freedom. The tendency to construct harassing conduct as speech has important ramifications since the appearance of the First Amendment, with its powerful array of standards and presumptions, augurs ill for any area of regulation which is brought within its shifting boundaries. As Frederick Schauer put it, "Once the First Amendment shows up, much of the game is over., 23 And indeed, arguably, the game may now be over for harassment law, which is to say, free speech issues may have obtained too much traction in this area to be dismissed out of hand. On the other hand, it remains at best unclear as to whether the First Amendment is even salient as to this area of law.
EntryDate
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1 -2017-02-05 01:30:17.0
Judge
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1 -Abbey Chapman
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1 -Brentwood EB
ParentRound
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1 -6
Round
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1 -2
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1 -Marlborough Coates Aff
Title
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1 -Jan-Feb Pluralism AC
Tournament
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1 -Golden Desert
Caselist.CitesClass[7]
Cites
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1 -1AC - Dissent
2 -The standard is maintaining checks on state power.
3 -Restraining the immense power of the state is always the stongest link to preventing oppression and protecting citizens’ wellbeing.
4 -Shklar ’98 - Judith Shklar, “The Liberalism of Fear,” Political Thought and Political Thinkers. Chicago: The University of Chicago Press. (1998), pp. 2-12
5 -Before we can begin to analyze any specific form of liberalism we must surely state as clearly as possible what the word means. For in the course of so many years of ideological conflict it seems to have lost its identity completely. Overuse and overextension have rendered it so amorphous that it can now serve as an all-purpose word, whether of abuse or praise. To bring a modest degree of order into this state of confusion we might begin by insisting that liberalism refers to a political doctrine, not a philosophy of life such as has traditionally been provided by various forms of revealed religion and other comprehensive Weltanschauungen. Liberalism has only one overriding aim: to secure the political conditions that are necessary for the exercise of personal freedom.¶ Every adult should be able to make as many effective decisions without fear or favor about as many aspects of her or his life as is compatible with the like freedom of every other adult. That belief is the original and only defensible meaning of liberalism. It is a political notion, because the fear and favor that have always inhibited freedom are overwhelmingly generated by governments, both formal and informal. And while the sources of social oppression are indeed numerous, none has the deadly effect of those who, as the agents of the modern state, have unique resources of physical might and persuasion at their disposal.¶ Apart from prohibiting interference with the freedom of others, liberalism does not have any particular positive doctrines about how people are to conduct their lives or what person choices they are to make. It is not, as so many of its critics claim, synonymous with modernity. Not that the latter is a crystal clear historical concept. Generally it does not refer to simply everything that has happened since the Renaissance, but to a mixture of natural science, technology, industrialization, skepticism, loss of religious orthodoxy, disenchantment, nihilism, and atomistic individualism. This is far from being a complete list, but it covers the main characteristics of modernity as it is perceived by those who believe that the word stands for centuries of despair and that liberalism is its most characteristic political manifestation.¶ It is by no means necessary to engage in disputes about the quality of the historiography or factual validity of this sort of discourse in general, but for the student of political theory at least one point must be noted. That is that liberalism has been very rare both in theory and in practice in the last two hundred odd years, especially when we recall that the European world is not the only inhabited part of the globe. No one could ever have described the governments of eastern Europe as liberal at any time, though a few briefly made a feeble effort in that direction after the First World War. In central Europe it has been instituted only after the Second World War, and then it was imposed by the victors in a war that we forget at our peril. Anyone who thinks that fascism in one guise or another is dead and gone ought to think again. In France liberalism under the three Republics flickered on and off and is only now reasonably secure, though it is still seriously challenged. In Britain it has enjoyed its longest political success, but not in the vast areas, including Ireland, that England ruled until recently. Finally, let us not forget that the United States was not a liberal state until after the Civil War, and even then often in name only. In short, to speak of a liberal era is not to refer to anything that actually happened, except possibly by comparison to what came after 1914.¶ The state of political thought was no more liberal than that of the reigning governments, especially in the years after the French Revolution. And we should not forget the deeply illiberal prerevolutionary republican tradition of which John Pocock has reminded us so forcefully. It is in any case difficult to find a vast flow of liberal ideology in the midst of the Catholic authoritarianism, romantic corporatist nostalgia, nationalism, racism, proslavery, social Darwinism, imperialism, militarism, fascism, and most types of socialism which dominated the battle of political ideas in the last century. There was a current of liberal thought throughout the period, but it was hardly the dominant intellectual voice. ln the world beyond Europe it was not heard at all. It was powerful in the United States only if black people are not counted as members of its society.¶ Why then, given the actual complexity of the intellectual history of the past centuries, is there so much easy generalizing about modernity and its alleged liberalism? The reason is simple enough: liberalism is a latecomer, since it has its origins in post-Reformation Europe. lts origins are in the terrible tension within Christianity between the demands of creedal orthodoxy and those of charity, between faith and morality. The cruelties of the religious wars had the effect of turning many Christians away from the public policies of the churches to a morality that saw toleration as an expression of Christian charity. One thinks of Sebastien Castellion among Calvinists, for example.' Others, torn by conflicting spiritual impulses, became skeptics who put cruelty and fanaticism at the very head of the human vices; Montaigne is the most notable among them. In either case the individual, whether the bearer of a sacred conscience or the potential victim of cruelty, is to be protected against the incursions of public oppression.¶ Later, when the bond between conscience and God is severed, the inviolability of personal decisions in matters of faith, knowledge, and morality is still defended on the original grounds that we owe it to each other as a matter of mutual respect, that a forced belief is in itself false and that the threats and bribes used to enforce conformity are inherently demeaning. To insist that individuals must make their own choices about the most important matter in their lives-their religious beliefs-without interference from public authority, is to go very far indeed toward liberalism. It is, I think, the core of its historical development, but it would be wrong to think of principled toleration as equivalent to political liberalism. Limited and responsible government may be implicit in the claim for personal autonomy, but without an explicit political commitment to such institutions, liberalism is still doctrinally incomplete. Montaigne was surely tolerant and humanitarian but he was no liberal. The distance between him and Locke is correspondingly great. Nevertheless, liberalism's deepest grounding is in place from the first, in the conviction of the earliest defenders of toleration, born in horror, that cruelty is an absolute evil, an offense against God or humanity. lt is out of that tradition that the political liberalism of fear arose and continues amid the terror of our time to have relevance.2¶ There are of course many types of liberalism that remain committed to the primacy of conscience, whether in its Protestant or Kantian versions. There is Jeffersonian liberalism of rights, which has other foundations; and the Emersonian quest for self-development has its own liberal political expression. Liberalism does not in principle have to depend on specific religious or philosophical systems of thought. It does not have to choose among them as long as they do not reject toleration, which is why Hobbes is not the father of liberalism. No theory that gives public authorities the unconditional right to impose beliefs and even a vocabulary as they may see fit upon the citizenry can be described as even remotely liberal. Of all the cases made against liberalism, the most bizarre is that liberals are really indifferent, if not openly hostile, to personal freedom. This may follow from the peculiar identification of Leviathan as the very archetype of liberal philosophy, but it is a truly gross misrepresentation which simply assures that any social contract theory, however authoritarian its intentions, and any anti-Catholic polemic add up to liberalism.'¶ The convoluted genealogy of liberalism that insists on seeing its origins in a theory of absolutism is not in itself interesting. More common is a sort of free association of ideas that perceives a danger to traditional revealed religion in toleration and hence assumes that liberalism is of necessity atheistic, agnostic, relativistic, and nihilistic. This catalogue of accusations is worth mentioning, because it is commonplace and because it is easily and usefully refuted. The original mistake is the failure to distinguish psychological affinities from logical consequences. As a result, these critics cannot grasp that the liberalism of fear as a strictly political theory is not necessarily linked to any one religious or scientific doctrine, though it is psychologically more compatible with some rather than with others. It must reiect only those political doctrines that do not recognize any difference between the spheres of the personal and the public. Because of the primacy of toleration as the irreducible limit on public agents, liberals must always draw such a line. This is not historically a permanent or unalterable boundary, but it does require that every public policy be considered with this separation in mind and be consciously defended as meeting its most severe current standard.¶ The important point for liberalism is not so much where the line is drawn, as that it be drawn, and that it must under no circumstances be ignored or forgotten. The limits of coercion begin, though they do not end, with a prohibition upon invading the private realm, which originally was a matter of religious faith, but which has changed and will go on changing as objects of belief and the sense of privacy alter in response to the technological and military character of governments and the productive relationships that prevail. It is a shifting line, but not an erasable one, and it leaves liberals free to espouse a very large range of philosophical and religious beliefs.¶ The liberalism of fear is thus not necessarily tied to either skepticism or to the pursuit of the natural sciences. There is, however, a real psychological connection between them. Skepticism is inclined toward toleration, since in its doubts it cannot choose among the competing beliefs that swirl around it, so often in murderous rage. Whether the skeptic seeks personal tranquility in retreat or tries to calm the warring factions around her, she must prefer a government that does nothing to increase the prevailing levels of fanaticism and dogmatism. To that extent there is a natural affinity between the liberal and the skeptic. Madison's discussion in the Federalist of how to end sectarian and similar factional conflicts through freedom is the perfect example of the fit between skepticism and liberal politics.' Nevertheless, a society of believers who choose never to resort to the use of the agencies of government to further their particular faith is imaginable, though not usual.¶ The intellectual flexibility of skepticism is psychologically more adapted to liberalism, but it is not a necessary element of its politics. A society governed by extremely oppressive skeptics can be easily imagined if, for example, they were to follow Nietzsche's political notions energetically. That is also true of the natural sciences. These tend to flourish most in freedom, quite unlike the fine arts and literature in this respect, but it is not impossible to imagine a sciencefriendly dictatorship. The publicity and the high standards of evidence, as well as the critical cast of mind which the natural sciences ideally require, again may suggest a psychological bond between the inner life of science and liberal politics. That is, however, far from being necessarily or even normally the case. There are many thoroughly illiberal scientists, in fact. The alliance between science and liberalism was one of convenience at first, as both had much to fear from the onslaughts of religion. With this shared enemy of censorship and persecution in abeyance, the identity of attitudes tended to fade. Science and liberalism were not born together; the former is far older. Nothing, however, can erase the chief difference between the two. The natural sciences live to change, while liberalism does not have to take any particular view of tradition.¶ To the extent that the European past was utterly hostile to freedom and that the most ancient of lndo-European traditions is the caste society, liberals must reject particular traditions. No society that still has traces of the old tripartite division of humanity into those who pray, those who fight, and those who labor can be liberal.5 To turn one's back on some or even most traditions does not, however, mean that one must forego all tradition as a matter of intellectual honesty. Liberalism need not decide among traditions that are not hostile to its aspirations, nor does it have to regard the claims of any traditions as inherently false, simply because they do not meet scientific standards of rational proof. It all depends on the content and tendencies of the tradition. Clearly representative government is impregnated with traditions in Britain and in the United States. The habits of voluntarism depend on a variety of traditions. These are surely more than merely compatible with liberalism.¶ Intellectual modesty does not imply that the liberalism of fear has no content, only that it is entirely nonutopian. In that respect it may well be what Emerson called a party of memory rather than a party of hope.' And indeed there are other types of liberalism that differ from it sharply in this respect. First of all there is the liberalism of natural rights which looks to the constant fulfillment of an ideal preestablished normative order, be it nature's or God's, whose principles have to be realized in the lives of individual citizens through public guarantees. It is God's will that we preserve ourselves, and it is our own and society's duty to see that we are protected in our lives, liberties, and property and all that pertains to them. To that end we have a duty to establish protective public agencies and the right to demand that they provide us with opportunities to make claims against each and all.¶ If we take rights seriously we must see to it that principles such as those of The Declaration of Independence be made effective in every aspect of our public life. If the agencies of government have a single primary function it is to see to it that the rights of individuals be realized, because our integrity as God's or nature's creations requires it. Conceivably one might argue that a perfect or optimal society would be composed solely of rights-claiming citizens. In all cases, therefore, the liberalism of natural rights regards politics as a matter of citizens who actively pursue their own legally secured ends in accordance with a higher law. The paradigm of politics is the tribunal in which fair rules and decisions are made to satisfy the greatest possible number of demands made by individual citizens against one another individually, and against the government and other socially powerful institutions. The liberalism of natural rights envisages a just society composed of politically sturdy citizens, each able and willing to stand up for himself and others.¶ Equally given to hope is the liberalism of personal development. Freedom, it argues, is necessary for personal as well as social progress. We cannot make the best of our potentialities unless we are free to do so. And morality is impossible unless we have an opportunity to choose our courses of action. Nor can we benefit from education unless our minds are free to accept and reject what we are told and to read and hear the greatest variety of opposing opinions. Morality and knowledge can develop only in a free and open society. There is even reason to hope that institutions of learning will eventually teplace politics and government. It would not be unfair to say that these two forms of liberalism have their spokesmen in Locke and John Stuart Mill respectively, and they are of course perfectly genuine expressions of liberal doctrine. It must be said, however, that neither one of these two patron saints of liberalism had a strongly developed historical memory, and it is on this faculty of the human mind that the liberalism of fear draws most heavily.¶ The most immediate memory is at present the history of the world since 1914. In Europe and North America torture had gradually been eliminated from the practices of government, and there was hope that it might eventually disappear everywhere. With the intelligence and loyalty requirements of the national warfare states that quickly developed with the outbreak of hostilities, torture returned and has flourished on a colossal scale ever since.' We say "never again," but somewhere someone is being tortured right now, and acute fear has again become the most common form of social control. To this the horror of modern warfare must be added as a reminder. The liberalism of fear is a response to these undeniable actualities, and it therefore concentrates on damage control.¶ Given the inevitability of that inequality of military, police, and persuasive power which is called government, there is evidently always much to be afraid of. And one may, thus, be less inclined to celebrate the blessings of liberty than to consider the dangers of tyranny and war that threaten it. For this liberalism the basic units of political life are not discursive and reflecting persons, not friends and enemies, nor patriotic soldier-citizens, nor energetic litigants, but the weak and the powerful. And the freedom it wishes to secure is freedom from the abuse of power and intimidation of the defenseless that this difference invites. This apprehension should not be mistaken for the obsessive ideologies which concentrate solely on the notion of totalitarianism. This is a shorthand for only the extremity of institutionalized violence and almost implies that anything less radically destructive need not concern us at all.¶ The liberalism of fear, on the contrary, regards abuses of public powers in all regimes with equal trepidation. It worries about the excesses of official agents at every level of government, and it assumes that these are apt to burden the poor and weak most heavily. The history of the poor compared to that of the various elites makes that obvious enough. The assumption, amply justified by every page of political history, is that some agents of government will behave lawlessly and brutally in small or big ways most of the time unless they are prevented from doing so.¶ The liberalism inspired by these considerations does resemble lsaiah Berlin's negative liberty, but it is not exactly the same. Berlin's negative liberty of "not being forced" and its later version of "open doors" is kept conceptually pure and separate from "the conditions of liberty," that is, the social and political institutions that make personal freedom possible. That is entirely necessary if negative liberty is to be fully distinguished from what Berlin calls "positive liberty," which is the freedom of one's higher from one's lower self. lt cannot be denied, moreover, that this very clear demarcation of negative liberty is the best means of avoiding the slippery slope that can lead us to its threatening opposite.¶ Nevertheless, there is much to be said for not separating negative liberty from the conditions that are at least necessary to make it possible at all. Limited government and the control of unequally divided political power constitute the minimal condition without which freedom is unimaginable in any politically organized society. It is not a sufficient condition, but it is a necessary prerequisite. No door is open in a political order in which public and private intimidation prevail, and it requires a complex system of institutions to avoid that. If negative freedom is to have any political significance at all, it must specify at least some of the institutional characteristics of a relatively free regime. Socially that also means a dispersion of power among a plurality of politically empowered groups, pluralism, in short, as well as the elimination of such forms and degrees of social inequality as expose people to oppressive practices. Otherwise the "open doors" are a metaphor-and not, politically, a very illuminating one at that.¶ Moreover, there is no particular reason to accept the moral theory on which Berlin's negative freedom rests. This is the belief that there are several inherently incompatible moralities among which we must choose, but which cannot be reconciled by reference to a common criterion-paganism and Christianity being the two most obvious examples." Whatever the truth of this metapolitical assumption may be, liberalism can do without it. The liberalism of fear in fact does not rest on a theory of moral pluralism. It does not, to be sure, offer a summum bonum toward which all political agents should strive, but it certainly does begin with a summum malum, which all of us know and would avoid if only we could. That evil is cruelty and the fear it inspires, and the very fear of fear itself. To that extent the liberalism of fear makes a universal and especially a cosmopolitan claim, as it historically always has done.¶ What is meant by cruelty here? It is the deliberate infliction of physical, and secondarily emotional, pain upon a weaker person or group by stronger ones in order to achieve some end, tangible or intangible, of the latter. It is not sadism, though sadistic individuals may flock to occupy positions of power that permit them to indulge their urges. But public cruelty is not an occasional personal inclination. It is made possible by differences in public power, and it is almost always built into the system of coercion upon which all governments have to rely to fulfill their essential functions. A minimal level of fear is implied in any system of law, and the liberalism of fear does not dream of an end of public, coercive government. The fear it does want to prevent is that which is created by arbitrary, unexpected, unnecessary, and unlicensed acts of force and by habitual and pervasive acts of cruelty and torture performed by military, paramilitary, and police agents in any regime.¶ Of fear it can be said without qualification that it is universal as it is physiological. It is a mental as well as a physical reaction, and it is common to animals as well as to human beings. To be alive is to be afraid, and much to our advantage in many cases, since alarm often preserves us from danger. The fear we fear is of pain inflicted by others to kill and maim us, not the natural and healthy fear that merely warns us of avoidable pain. And, when we think politically, we are afraid not only for ourselves but for our fellow citizens as well. We fear a society of fearful people.¶ Systematic fear is the condition that makes freedom impossible, and it is aroused by the expectation of institutionalized cruelty as by nothing else. However, it is fair to say that what I have called "putting cruelty first" is not a sufficient basis for political liberalism. It is simply a first principle, an act of moral intuition based on ample observation, on which liberalism can be built, especially at present. Because the fear of systematic cruelty is so universal, moral claims based on its prohibition have an immediate appeal and can gain recognition without much argument. But one cannot rest on this or any other naturalistic fallacy. Liberals can begin with cruelty as the primary evil only if they go beyond their well-grounded assumption that almost all people fear it and would evade it if they could. If the prohibition of cruelty can be universalized and recognized as a necessary condition of the dignity of persons, then it can become a principle of political morality. This could also be achieved by asking whether the prohibition would benefit the vast majority of human beings in meeting their known needs and wants. Kantians and a utilitarian could accept one of these tests, and liberalism need not choose between them.¶ What liberalism requires is the possibility of making the evil of cruelty and fear the basic norm of its political practices and prescriptions. The only exception to the rule of avoidance is the prevention of greater cruelties. That is why any government must use the threat of punishment, though liberalism looks upon this as an unavoidable evil, to be controlled in its scope and modified by legally enforced rules of fairness, so that arbitrariness not be added to the minimum of fear required for law enforcement. That this formulation owes something to Kant's philosophy of law is evident, but the liberalism of fear does not rest on his or any other moral philosophy in its entirety." It must in fact remain eclectic.¶ What the liberalism of fear owes to Locke is also obvious: that the governments of this world with their overwhelming power to kill, maim, indoctrinate, and make war are not to be trusted unconditionally ("lions"), and that any confidence that we might develop in their agents must rest firmly on deep suspicion. Locke was not, and neither should his heirs be, in favor of weak governments that cannot frame or carry out public policies and decisions made in conformity to requirements of publicity, deliberation, and fair procedures. What is to be feared is every extralegal, secret, and unauthorized act by public agents or their deputies. And to prevent such conduct requires a constant division and subdivision of political power. The importance of voluntary associations from this perspective is not the satisfaction that their members may derive from joining in cooperative endeavors, but their ability to become significant units of social power and influence that can check, or at least alter, the assertions of other organized agents, both voluntary and governmental.
6 -
7 -Thus the plan: Public colleges and universities in the United States will not restrict any constitutionally protected speech.
8 -
9 -Contention 1: Dissent
10 -The state uses racialized fearmongering to justify the suppression of academic and student dissent. This inculcates a norm of fearful self-censorship in scholars and students.
11 -Chatterjee and Maira ’14 - Piya Chatterjee Chair of Gender and Women's Studies Chair of the Feminist, Gender, and Sexuality Studies department; B.A. Wellesley College (Political Science/Anthropology);M.A. University of Chicago (Political Science/Anthropology); Ph.D. University of Chicago (Anthropology) and Sunaina Maira (Professor of Asian American Studies, UC Davis) (Eds.) (2014). “The Imperial University: Race, War, and The Nation-State” The Imperial University: Academic Repression and Scholarly Dissent. Minneapolis, MN: University of Minnesota Press.
12 -State warfare and militarism have shored up deeply powerful notions of patriotism, intertwined with a politics of race, class, gender, sexuality, and religion , through the culture wars that have embroiled the U.S. academy. The fronts of “hot” and “cold” wars—military, cultural, and academic— have rested on an ideological framework that has defined the “enemy” as a threat to U.S. freedom and democracy. This enemy produced and propped up in the shifting culture wars— earlier the Communist, now the (Muslim) terrorist— has always been both external and internal. The overt policing of knowledge production, exemplified by right-wing groups such as ACTA, reveals an ideological battle cry in the “culture wars” that have burgeoned in the wake of the civil rights movement— and the containment and policing demanded within the academy. Defending the civilizational integrity of the nation requires producing a national subject and citizen by regulating the boundaries of what is permissible and desirable to express in national culture— and in the university. As Readings observed, “In modernity, the University becomes the model of the social bond that ties individuals in a common relation to the idea of the nation-state.” 46 Belonging is figured through the metaphor of patriotic citizenship, in the nation and in the academy, through displays of what Henry Giroux has also called “patriotic correctness”: “an ideology that privileges conformity over critical learning and that represents dissent as something akin to a terrorist act.” 47¶ This is where the recent culture wars have shaped the politics of what we call academic containment. For right-wing activists, the nation must be fortified by an educational foundation that upholds, at its core, the singular superiority of Western civilization. A nation-state construed as being under attack is in a state of cultural crisis where any sign of disloyalty to the nation is an act of treachery, including acts perceived as intellectual betrayal. The culture wars have worked to uphold a powerful mythology about American democracy and the American Dream and a potent fiction about freedom of expression that in actuality contains academic dissent. This exceptionalist mythology has historically represented the U.S. nation as a beacon of individual liberty and a bulwark against the Evil Empire or Communist bloc ; Third Worldist and left insurgent movements, including uprisings within the United States in the 1960s and 1970s and in Central America in the 1980s; Islamist militancy and anti-imperial movements since the 1980s ; and the threat posed by all of these to the American “way of life.” The battle against Communism, anti-imperial Third Worldism, and so-called Islamofascism entailed regulating and containing movements sympathetic to these forces at home, including intellectuals with left-leaning tendencies and radical scholars or students— all those likely to contaminate young minds and indoctrinate students in “subversive” or “anti-American” ideologies.¶ What does it mean, then, to contain scholars who “cross the line” in their academic work or public engagement? Academic containment can take on many modalities: stigmatizing an academic as too “political,” devaluing and marginalizing scholarship, unleashing an FBI investigation, blacklisting, or not granting scholars the final passport into elite citizenship in the academic nation— that is, tenure. These various modalities of containment, which are discussed by Thomas Abowd, Laura Pulido, and Steven Salaita, among others, narrow the universe of discourse around what is really permissible, acceptable, and tolerable for scholars in the imperial university. All these modes are at work in the three important moments of ideological policing that we touch on here: World War I and the McCarthy era of the 1940s– 1950s, the COINTELPRO era from the late 1950s to early 1970s, and the post-9/ 11 era or “new Cold War,” which is the major focus of this book.¶ Moments of social stress and open dissent about class politics in the United States during World War I and the first decades of the twentieth century make clear that containment worked in tandem with emerging definitions of “academic freedom.” As the U.S. professoriate began to build its ranks at the end of the nineteenth century and a few scholars 48 challenged the status quo, “academic freedom” emerged as a way to deal with these dissenters as well as the “relative insecurity” felt by many in this new profession. 49 Indeed, the tumult of the turn of the century led to a pattern within the academy that has persisted— the exclusion of ideas as well as behavior that the majority did not like and an increasingly internalized notion that “advocacy for social change” was a professional risk for academics.¶ The AAUP’s Seligman Report of 1915 reveals that the notion of academic freedom was, in fact, “deeply enmeshed” with the “overall status, security, and prestige of the academic profession.” 50 Setting up procedural safeguards was important, but its language regarding “appropriate scholarly behavior” and cautiousness about responding to controversial matters in the academy (by ensuring that all sides of the case were presented) suggested the limits of dissent. Academic freedom , then, is a notion that is deeply bound up with academic containment— a paradox suggested in our earlier discussion of protest and inclusion/ incorporation in the academy and one that has become increasingly institutionalized since the formation of the AAUP.¶ The academic repression of the McCarthy era received its impetus from President Truman’s March 22, 1947, executive order that “established a new loyalty secrecy program for federal employees.” However, the roots of institutional capitulation— by both administrators and faculty— when the state targeted academics who were communists or viewed as “sympathizers” are much deeper. It is also significant that the notion of “appropriate behavior” for faculty rested on a majoritarian academic “consensus” about “civil” and “collegial” comportment. For example , Ellen Schechter notes cases prior to the Cold War where scholars were fired not necessarily for their political affiliations per se but due to “their outspoken-ness.” 51 This repression from within— not just beyond— the academy reveals the cultures of academic containment where, as Pulido, Gumbs, and Rojas remind us, certain kinds of “unruliness” must be managed or excised.¶ The logic of academic containment was dramatically staged during the civil rights and antiwar struggles, when the FBI surveilled and arrested Black Power, antiimperialist, and radical scholar-activists during the era of COINTELPRO (1956– 1971). Angela Davis, most famously, was fired from UCLA by then California governor Ronald Reagan for being a member of the Communist Party. Some of these radical intellectuals went on to develop and establish programs in ethnic studies, critical race studies, and women’s studies, fields that later became embroiled in the conservative attacks that unfolded in the 1980s and 1990s against the specter of an “un-American” and “divisive” multiculturalism . Works such as Allan Bloom’s The Closing of the American Mind, Roger Kimball’s Tenured Radicals: How Politics has Corrupted Our Higher Education, and in some ways also David Hollinger’s Postethnic America: Beyond Multiculturalism generated anxieties about the presumed failure of university education to transmit an essential set of knowledges and a contentious debate about the divisiveness of multiculturalism and movements for group rights. 52 Right-wing hysteria and neoconservative moral panics in the culture wars were accompanied by liberal concerns that ethnic studies, and to some extent women’s studies and queer studies, were devolving into “identity politics.” Liberal -left intellectuals, such as Todd Gitlin , worried that ethnic and racial studies asserted an identitarianism that was an abandonment of a “proper” left politics. Salaita points out that Gitlin also criticized as irresponsible scholars who challenged the policies of the Israeli state, as have other progressive scholars open to critiques of militarism or colonialism— except in the case of Israel. In other words, the culture wars were fought not just between the right and left but within the liberal-progressive left as well.¶ In her painful— and politically revealing— experience with Chicana/ o studies in California public institutions over the past twenty years, Rojas offers a glimpse “of the ways imperial projects order gender/ sexual/ racial politics at the public university” and the “resulting devastating violence deployed on subjects deemed dangerous to the colonial imaginary of a colonial , heteropatriarchal Chicano studies.” The difficult question that Rojas’s “testimonio” addresses is how to connect this hetero-masculinist logic and violence— what she calls heteropatriracialities— to the “incorporation” of ostensibly liberatory, decolonizing projects such as Chicano/ a studies that were birthed through the antiwar and antiracist movements of the 1960s. We view this perverse “incorporation” of ethnic studies as the result of a dangerous “internalization” of the imperial project of the university and also as meshing well with the hetero-masculinist and classed cultures that shape the dominant, everyday practices of the imperial academy. Containment is not abstract at all— it is marked decisively, and often violently, on specific kinds of bodies whose presence is definitively marked as “Other,” as evident in Abowd’s and Godrej’s chapters. If one speaks from already dangerous embodiments, structured historically, then that speech risks always being seen as a threat. The “natives” within the academy must be most careful and most civilized in their speech, as Rojas and Abowd suggest. Their queer/ sexed/ raced bodies mark always-possible threats. There are enough natives who perform the terms of civilization and capitulation and contain themselves: that is how empires have always ruled— through tokenism, exceptionalism, and divide-and-rule. When it comes from “within,” containment and silencing— as Rojas shows us— can be the most devastating of all.¶ These stories of academic containment must be situated within the culture wars and also within the context of what Christopher Newfield, among other critics, calls a “long counterrevolution” against the gains of the civil rights and left movements of previous decades. 53 Newfield argues that right-wing movements waged a cultural offensive that targeted “progressive trends in the public universities” as an important front of “roundabout wars” on the middle class, waged through the “culture wars on higher education”: “The culture wars were economic wars” against the new, increasingly racially integrated middle class, “discrediting the cultural framework that had been empowering that group.” 54 In other words, the culture wars were also class wars staged on a racial battlefield, for the corporatization and privatization of the public university, as in California, occurred as it was becoming more racially integrated. 55¶ Several chapters illustrate the ways in which academic containment emerges with and though the containment of economic, racial, and cultural struggles . In Gumbs’s chapter, the class wars are situated in the racial management of student of color and immigrant populations in the CUNY system in the post– civil rights era of open admissions and campus occupations by students; violent policing to enforce “law and order” accompanied rising incarceration rates of people of color. Similarly, Godrej’s chapter illuminates the ways in which protests of university privatization and nonviolent civil disobedience by students and faculty during the current budget crisis in the University of California have been met with police brutality by increasingly militarized campuses; casting these movements as a threat evades the structural violence of tuition hikes, exclusion, impoverishment, home foreclosures, and the “neoliberal disinvestment in the concept of education as a public good.”¶ In effect, the neoliberal structuring of the university is also a racial strategy of management of an increasingly diverse student population, as increasing numbers of minority and immigrant students have entered public higher education. Well-funded, neoconservative organizations and partisan groups, such as ACTA, David Horowitz’s Freedom Center, and Campus Watch, have placed ethnic studies, feminist and queer studies, and critical cultural studies in their bull’s-eye as the political project of leftist professors running amok in the academy and teaching biased curricula. In addition, campaigns such as Horowitz’s Academic Bill of Rights and Student Bill of Rights constructed the figure of a new victim in the culture wars: the “American student” whose freedom to challenge these partisan faculty had been suppressed .56 According to these right-wing campaigns, “radical” scholars were force-feeding U.S. college students with anti-American views, and right-wing students were being marginalized and “discriminated” against due to their political ideology and affirmative action programs. Thus the language of marginalization and exclusion was turned on its head, as the discourse of right-wing victimhood and ideological discrimination was unleashed against the political movements and intellectual projects that opposed racial and class inequality.¶ In addition, the right appropriated the language of “diversity,” a key point of contradiction in the academic culture wars. For example, the “Students for Academic Freedom” campaign launched by Horowitz used the notion of “intellectual pluralism” to mask its well-orchestrated attack on the left. 57 The cultural right manufactured a portrait of itself as the true advocate of intellectual pluralism and freedom, remaking diversity through a “free market” model based on the right to choice in the marketplace of ideas. 58 The notion of choice, central to models of flexible accumulation and global economic competitiveness for proponents of neoliberal capitalism, underlies the tenet of intellectual choice. A “weak” multiculturalism and liberal notion of tolerance thus served the right well, for they used it to argue that the problem was not simply that of “diversity,” which they apparently embraced, but that there wasn’t enough “intellectual diversity” on college campuses. Teaching, and also research, was becoming one-sided, to the detriment of those upholding “true” American values, who were increasingly marginalized in hotbeds of left indoctrination into anti-Americanism on college campuses. In addition, as Pulido’s case study demonstrates, as faculty and administrators of color—not to mention women— have made their way into the ranks of university management, academic institutions can hide behind the language of racial (and gender) representativeness and tokenist inclusion to deflect critiques of systemic problems with faculty governance.¶ The strategic co-optation of the language of pluralism for academic containment is nowhere more evident than in the assault on progressive scholarship in Middle East studies and postcolonial studies and in the intense culture wars over Islam, the War on Terror, and Israel-Palestine. The 9/ 11 attacks and the heightened Islamophobia they generated allowed Zionist and neoconservative groups to intensify accusations that progressive Middle East studies scholars and scholars critical of U.S. foreign policy were guilty of bias and “ one-sided” partisanship , as observed in accounts of censure, suspicion, and vilification by Abowd, De Genova, and Salaita. The post-9/ 11 culture wars conjured up new and not-sonew phantoms of enemies— in particular , the racialized specter of the “terrorist.” This figure, and the racial panic associated with it, has been sedimented in the national imaginary as synonymous with the “Muslim” and the “Arab” since the Iranian Revolution of 1978– 1979 and the First Intifada against Israeli occupation in the late 1980s. The War on Terror consolidated Orientalist caricatures of Muslim fanatics and Arab militants , but it is important to note that these also dredged up avatars of a historical logic of containment and annihilation of indigenous others. 59 The native, the barbarian, and the foreigner converge in this cultural imaginary that legitimizes violence against anti-Western, uncivilized regions incapable of democratic self-governance and that is produced by expert knowledge of other peoples and regions. The wars in Iraq and “Af-Pak” and the global hunt for terrorists entailed an intensified suspicion and scrutiny of ideologies that supported militant resistance or “anti-American” sentiments and necessitated academic research on communities that were supposedly “breeding grounds” for terrorism.¶ The post-9/ 11 panic about Muslim terrorists and enemy aliens increasingly focused on the threat of “homegrown terrorism” as the War on Terror shifted its focus to “radicalized” communities within the United States, especially Muslim American youth. At the same time, as Godrej observes, the criminalization of those considered threats to national security has included the violent repression of Occupy activists and student protesters and indefinite detention authorized by the PATRIOT (Provide Appropriate Tools Required to Intercept and Obstruct Terrorism) Act and the National Defense Authorization Act. Protests focused on higher education thus blur into dissent against U.S. warfare and the homeland security state in a climate of heightened campus securitization and university collaboration with the FBI in the interest of “public safety.” Anarchists are considered domestic terror threats to be contained, and Muslim or Arab American students (or faculty) who are also anarchists are subjected to multiple levels of containment and scrutiny, as suggested in the chapter by Falcón et al. Academic containment is clearly part of a larger politics of repression and policing in the national security state that affects faculty and students as well as the campus climate in general.¶ While the FBI has interviewed unknown numbers of Muslim and Arab American college students and infiltrated and monitored Muslim student organizations since 9/ 11, counterterrorism experts have generated models of “radicalization” of Muslim youth, especially males, invoking cultural pathologies of “hate” and alienation. Regimes of surveillance, detention, and deportation of terrorists, or terrorist sympathizers lurking within the nation, are underwritten by a gendered and racialized logic: the imperative to save women, particularly Muslim and Middle Eastern women, from inherently misogynistic Muslim and Middle Eastern men. Cultural knowledge and academic expertise are needed to refine policies of humanitarian intervention in these imperial cartographies of nations or cultures whose women are in need of rescue and nations or civilizations in need of saving, as brilliantly argued by Jasbir Puar in her work on U.S. and Israeli homonationalisms. While it is easy to critique overtly racist commentators in the culture wars, we must note that it is not just right wing but also liberal critics and scholars who worry that a new “political correctness” is supposedly silencing critiques of cultures and religious communities whose social norms are inherently antithetical to Western secular modernity (that is, Muslims and Arabs). This allegation ignores the deafening silences in many quarters— including in the academy— about ongoing state terror against particular, racialized populations.60¶ Indeed, the antiwar movement has been dismally weak on most college campuses since 2003– 2004 and there have barely been any campus protests against the wars and drone attacks in Afghanistan and Pakistan that continue to be waged by Obama or against the prison at Guantanamo. A troubling trend since 9/ 11 is that U.S. liberal feminism concerned about the oppression of Muslim women— but not about the occupation, colonization, and devastation of their societies by warfare or neoliberal capitalism—has found perhaps unlikely allies in neocon activists in the culture wars, from Irshad Manji and Ayaan Hirsi Ali to Horowitz. 61 And equally significantly, these external attacks on critical scholarship have occurred in a context where the neoliberal privatization of the university has accelerated and where attacks on women’s and gender studies, queer studies, and also ethnic studies programs have intensified.¶ In addition, we see a gendered and racial logic in academic containment where the figure of the “angry Arab ” (or Muslim) male scholar is often subjected to policing by a deeply politicized notion of academic “civility.” There is a general uneasiness about male scholars of color as inappropriately aggressive if they challenge the status quo, especially in the context of U.S. nationalisms and nationalisms allied with U.S. hegemony— that is, American Zionist movements. This is evident from the string of campaigns targeting Arab and Palestinian male academics in the United States, such as Sami Al-Arian, Joseph Massad, Rashid Khalidi, and Abowd, who alludes to the racial logic in the allegations drummed up against him by Zionist activists and the dismal, and in some cases hostile, response of the university administration.¶ So while there are indeed Arab and Muslim female academics who have been targeted by Zionist campaigns, notably the Palestinian academic Nadia Abu El Haj, it is evident that Arab and Muslim masculinities are framed in the culture wars as inherently violent and potentially perverse. At the minimum , they are insufficiently conforming to or excessively threatening to white American masculinity, and, at worst, they are an existential threat to the nation, but in either case they must be contained. On the other hand, Arab and Muslim femininities are viewed by this same Orientalist logic as inherently victimized and in need of protection, but it is generally difficult to view the Arab or Muslim male scholar as in need of saving and support within the framework of liberal white “civility.”¶ Abowd pinpoints the unease with “uppity” Arab male academics who challenge the powerful status quo in the academy in a climate in which Arabophobia, not to mention Islamophobia, has consolidated the conflation of critiques of Israel with sympathy for terrorism. This is a moment in which even campus boycott and divestment movements focused on Israel are attacked as “anti-Semitic,” as evident in the firestorm over the panel on boycott at Brooklyn College in 2013; 62 there is a complex conflation of racialization, racism, gendering, and right-wing nationalism that is at work here, one that Puar and Salaita address. 63 Furthermore, as Abowd notes, overtly racialized constructions and suspicion of Muslim male academics— or academics who might be Muslim— as inherently anti-Semitic and militant and who must be disciplined, emerge in unexpected moments and in academic spaces where one would assume this kind of blatant racial suspicion is impermissible. Falcón et al.’ s chapter cites the poignant case of an Arab/ Muslim American male student who was removed from the classroom by police and was considered a “threat” due to his radical, anti-imperialist critiques, which, not surprisingly, he felt increasingly fearful of expressing in class. Their chapter reminds us that we need to think more deeply about how the post-9/ 11 apparatus of policing and surveillance has affected students who feel the most vulnerable and has transformed the classroom environment.¶ The racial and gendered logic of academic containment is powerfully evident in De Genova’s autobiographical chapter, which suggests that the critique of white male scholars who directly challenge dominant ideologies of militarism and U.S. foreign policy, if expressed in terms that unsettle the acceptable academic consensus in elite institutions, is also deeply troubling and compels other academics to distance themselves from dissent considered beyond the pale. Processes of racialization and gendering— the building of consensus around war and nation making— are intertwined with the daily work and lived experience of scholars within the university, making it a highly charged site in debates about the mission of higher education and the future of the nation-state.
13 -Free speech zones are used to effectively silence dissent on campus.
14 -Herrold ’06 - Joseph D. Herrold B.A., Grinnell College, 2003; J.D. Candidate, Drake U. Law School, 2006, “Capturing the Dialogue: Free Speech Zones and The “Caging” of First Amendment Rights,” Drake Law Review, Vol. 54, pp. 949-995.
15 -The use of government-imposed free speech zones gained widespread media and public attention during the 2004 Democratic and Republican National Conventions.1 Originating on college and university campuses in response to the student activism of the 1960s,2 free speech zones are now frequently imposed in the context of public expression of opinion.3 These zones generally take two basic forms: the protest zone, in which the First Amendment4 activity of protestors is confined to a designated area while the speech of others is not; and the complete capture zone, in which all First Amendment activity is confined to the zone and speech sometimes is effectively silenced.5 This Note will examine the role and effect of free speech zones on First Amendment jurisprudence in light of the security concerns brought on by the War on Terror. It will scrutinize the conditions imposed on citizens exercising their First Amendment rights through the government’s imposition of free speech zones and the reasoning supplied by the limited number of courts that have had occasion to examine the issue. Finally, this Note will examine the constitutionality of free speech zones by discussing their role in First Amendment jurisprudence and the validity of the rationale and concerns underlying their use, and will suggest some minimum standards that should be met in order for a free speech zone to be a constitutional time, place, and manner restriction on speech.¶ II. THE NATURE OF FREE SPEECH ZONES¶ “Free speech can occur anywhere on campus . . . . But protests or other political activity must stay in the free speech zones . . . .”6 The Orlando Sentinel thus paraphrased the president of a public university explaining the university’s policy of limiting protest activity to four designated areas on campus.7 Prior to a federal court ruling in a lawsuit brought by students,8 Texas Tech University designated a twenty-foot-wide gazebo capable of holding no more than forty people as the sole free speech zone on campus.9 Western Michigan University ordered a protestor to move to a “protest zone” that was 150–200 yards away from the presidential motorcade route and behind a campus building.10 After watching several hundred people occupy his former location, the protestor attempted to return and was arrested.11 Such is the existence of free speech on many public college and university campuses—contained, captured, and zoned away from its intended recipients.¶ Yet free speech zones have moved beyond the boundaries of the college and university campus and can now be found in the realm of public politics, from the municipal through the national level. A public library in Mesa, Arizona, confined protestors, even silent ones, to a free speech zone the size of a parking space and set against a wall behind a bike rack.12 In 2002, a Pennsylvania man was arrested and charged with disorderly conduct for refusing to move to a free speech zone behind a fence during an appearance by the President, even though supporters were allowed outside the free speech zone “cage” and closer to the rally.13 In a similar incident, a South Carolina man was arrested during a presidential visit and prosecuted under a law that prohibits “‘entering a restricted area around the president of the United States’”; he refused to go to a free speech zone half a mile away after he noticed that supporters of the President were allowed to stand outside the protest zone and closer to the President.14 Individuals in Iowa wearing shirts and buttons supporting rival presidential candidate John Kerry were barred from attending, and some were arrested, during public campaign events for President George W. Bush; one ticket-holder wearing a satirical Bush campaign button at another event was forced to stand behind a wall of Secret Service agents and prevented from asking any questions.15 These instances show that the free speech zone has obviously been recognized as an effective means of isolating First Amendment activity that those in positions of authority consider disruptive.¶ This crossover into the area of public politics was prominently manifested by the free speech zones utilized at the 2004 Democratic and Republican National Conventions.16 Although the government at the 2000 Democratic National Convention in Los Angeles had utilized a free speech zone,17 it was the publicity surrounding the 2004 conventions that prominently placed the issue of free speech zones into public discourse.18 Boston created a 28,500 square foot free speech zone that was fully enclosed “with chain-link fencing, razor wires, netting, and cement barriers and capped by elevated Green Line tracks that slope down to 5 feet 9 inches above the ground at one point.”19 “One New York Times reporter described the area as ‘a decrepit stretch of asphalt sandwiched under defunct train tracks and walled off with barbed wire coils and thick steel-mesh barriers.’”20 The 2004 Republican National Convention in New York City likewise confined protestors to a free speech zone made up of a series of mobile steel pens near the convention site that were capable of completely enclosing demonstrators wherever they moved en masse while also prohibiting individual demonstrators from leaving the enclosure.21¶ Though these examples are recent, government efforts at restricting First Amendment expression are not new. From early congressional efforts to restrict disloyal statements during wartime22 to state efforts to ban cross burning,23 the scope of First Amendment protection is regularly tested by government action. Such restrictive efforts have continually evolved alongside the Court’s First Amendment jurisprudence.24 Free speech zones are one of the latest incarnations of these efforts.¶ The problem with designating areas as free speech zones and restricting speech to those areas is twofold. The first problem arises when the free speech zone is used to capture dissenting speech and expressive activity while all other First Amendment activity is permitted outside the zone.25 This situation results in content discrimination, viewpoint-based discrimination, or both, for which existing First Amendment jurisprudence can be applied with no difficulty to reach a “just” solution.26 Though this method of restricting protest speech has found new life after September 11, 2001—because security interests normally asserted by the government, such as maintaining public access to an area or preventing property damage, have been further bolstered by fears of terrorism27—there has been no indication that the courts would uphold such discrimination by the government.¶ The second and more dangerous problem with free speech zones occurs when all speech is restricted to the zone and communication outside of it becomes effectively impossible.28 The difficulty that arises in this situation is that, because all expressive activity is confined to the zone, the regulation is viewpoint and content neutral, meaning it need only pass an intermediate level of scrutiny to be upheld as a valid restraint on First Amendment expression.29 This standard requires “‘narrow tailoring to serve a significant governmental interest, and . . . the availability of ample alternative channels for communication of the information.’”30 Yet, instead of applying the intermediate level of scrutiny the law requires, courts sometimes become extremely deferential to the security concerns of the government, especially when facing severe time constraints that might make it dangerous to invalidate any aspect of the government’s security plan.31 Under such constraints, judicial scrutiny may effectively disappear, and First Amendment activity may end up being completely contained to a location that, for all practical purposes, results in silence.
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17 -Universities suppress controversial speech to keep admissions numbers high and donations pouring in.
18 -Ukueberuwa ’17 - Mene Ukueberuwa Hilton Kramer Fellow in Criticism at The New Criterion and a student outreach coordinator at Heterodox Academy, “Don’t Blame Politics for the Crisis at American Colleges,” New Republic (Web). February 1, 2017. Accessed February 2, 2017.
19 -In focusing on this political cartel effect, however, critics tend to underemphasize the increasing fragility of the universities themselves—the second great factor that has wiped away tolerance for “dangerous” ideas on college campuses since the mid-twentieth century. The schools of a half-century ago were much leaner, with comparatively tiny budgets and administrative staffs, meaning they felt no itch to raise ever-higher funds with each passing minute and no need to keep their image so squeakily clean for the donors. Today, every controversy that arises on campus has the potential to tarnish the image that generations’ worth of administrators have crafted to keep admissions numbers high and donations pouring in—that is, the banner shot of carefree students, tossing a Frisbee on a well-kept lawn with a preternaturally diverse group of their classmates. The president of Yale may find the sight of John Calhoun’s name emblazoned above a dorm building to be offensive. Of more immediate concern, though, would be the drop in applications and tightening of Yale’s famous endowment that would follow from a reinvigorated protest, spurred by his reluctance to chisel Calhoun’s name away.¶ In the balance between encouraging a clash of ideas and prioritizing stability, the rise in power of college administrators has tipped the scales immeasurably. Dr. Jonathan Zimmerman of the University of Pennsylvania, an education historian, told me that the “number of full-time faculty members has consistently declined” since the mid-1960s. He added that administrative growth took off during the same era, with non-teaching staff outnumbering professors from the 1990s onward.¶ Predictably, the administrator-run campus has transitioned from imparting essential knowledge to students toward treating students as customers. Zimmerman took note of the most visible element of the customer-service college: the surge of pricey construction projects such as “climbing gyms and luxury dorms” (although he noted that beneficial services such as mental health counseling have also grown from the same impulse to cater to students).¶ Putting aside these costly services of all sorts, however, the more dangerous development in campus consumerism has taken place in the classroom. In The Dumbest Generation, a 2008 book that is mostly a critique of millennial ignorance, the writer and English professor Mark Bauerlein turns his sights on his fellow members of the academy in a chapter called “The Betrayal of the Mentors.” Bauerlein describes the increasingly common practice of treating students as customers who are always right, rather than offering new perspectives that might expand their worldviews: “If mentors are so keen to recant their expertise, why should students strain to acquire it themselves?” This type of professorial restraint, which lecturers adopt under the pretense of encouraging dialogue, actually diminishes intellection. With no real arguments being made in the classroom, today’s students are likelier to rest upon the easiest reading of any particular subject, never developing a tolerance for unconventional perspectives.¶ This crisis of confidence at colleges—driven by conflict-shy administrators and self-effacing professors—has come to a head in the culture of protest that has developed on American campuses. Once again, political polarization is only one part of the story. Today’s college students are certainly more liberal and more ideologically uniform than their counterparts of the mid-twentieth century. But the focus on the little things that we see in campus protests—as in the movement to suppress insensitive Halloween costumes at Yale in 2015—shows the extent to which the political fervor is being driven by the absence of bigger, richer ideas to seize students’ attention. The New York Times columnist Ross Douthat made this case in a column during the same outburst of protests, which swept through dozens of campuses that fall. “The protesters at Yale and Missouri,” he pointed out, are “dealing with a university system that’s genuinely corrupt, and that’s long relied on rote appeals to the activists’ own left-wing pieties to cloak its utter lack of higher purpose.” In other words, if hollowing out collegiate culture of all of its challenging substance really was just a ploy to dodge controversy and keep the money coming in, then it looks like the strategy has decidedly backfired.¶ Meanwhile, studies are beginning to pile up that show that students are not merely made restless by the lack of challenging substance, but are also left intellectually stunted, never learning to discuss politics, economics, or culture in any terms outside of the narrow lexicon of social justice. Richard E. Redding and William O’Donahue pushed back against the PC curriculum with a 2010 study that challenged the value of identity-centric teaching, and Columbia professor Mark Lilla articulated the same case to a broader audience last November in a New York Times op-ed that called for “The End of Identity Liberalism.”
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21 -The exercise of government power is unpredictable. Progressives are most likely to be censored if the free speech protections are weakened.
22 -Bernstein ’03 - David E. Bernstein Prof., George Mason U. School of Law, “Defending the First Amendment from Antidiscrimination Laws,” 82 North Carolina Law Review 224 (2003).
23 -Ironically, protecting freedom of expression from government regulation ultimately will benefit left-wing scholars who support censorship, such as radical feminists and critical race theorists, as much as anyone. These scholars advocate speech regulations while living primarily in the very left-wing academic world, where their views are only marginally out of the mainstream. Yet, if the First Amendment is weakened sufficiently by antidiscrimination law that the government gains the power to suppress speech more broadly, feminists and critical race theorists, as holders of views wildly at variance to those of the public at large, are likely to be among the first victims. FN125 That leftists writing in a society that has long been and continues to be hostile to their ideology FN126 would want to weaken the principle that government may not suppress expression because of hostility to its viewpoint seems counterintuitive, to say the least.¶ Indeed, many critical race scholars and feminists argue that America is innately and irredeemably racist and sexist. FN127 One need not accept this vision to realize that the Critical Race and Radical Feminist Party, if such a thing existed, would not exactly sweep the American electorate anytime soon. FN128 Because many critical race theorists and feminists claim to believe that America is so hostile to their values, they should find constitutional protections against the majority especially meaningful.¶ Indeed, if left-wing professors wish to preserve their own academic freedom, they will need to learn to be more tolerant of those whose speech they currently seek to suppress. For the last several decades, pressure to censor free speech on university campuses has come primarily from the left. The current war against terrorism, and the frequent dissent within the academy to that war, has shifted the dynamic, putting many radical professors on the defensive. The First Amendment, and the values of academic freedom that it has fostered, will protect the vast majority of dissenters, but only because the radical's war against the First Amendment has as yet been largely unsuccessful.¶ Of course, left-wing censors imagine a world in which the government silences only their ideological enemies, and they advocate censorship as an integral part of a much broader scheme for reconstructing society along egalitarian lines. Yet, it should be a cardinal principle of political advocacy that one should not support granting the government regulatory powers that one would not want applied to oneself. This principle would not only reduce hypocrisy, but also remind political activists that politics is unpredictable, driven by power rather than morality. Power given to government is often unexpectedly ultimately used against those who advocated that the power be exercised against others. As William Graham Sumner remarked many years ago:¶ The advocate of government interference takes it for granted that he and his associates will have the administration of their legislative device in their own hands. . . . They never appear to remember that the device, when once set up, will itself be the prize of a struggle; that it will serve one set of purposes as well as another, so that after all the only serious question is: who will get it?" FN129
24 -
25 -Campus speech codes are often turned against the marginalized groups they are designed to protect.
26 -Strossen ’90 - Nadine Strossen Prof. of Law, NY Law School; President of the ACLU, 1991-2008, “Regulating Speech on Campus: A Modest Proposal?” Duke Law Journal, Vol. 1990:484 (1990). AT
27 -The first reason that laws censoring racist speech may undermine the goal of combating racism flows from the discretion such laws inevitably vest in prosecutors, judges, and the other individuals who implement them. One ironic, even tragic, result of this discretion is that members of minority groups themselves-the very people whom the law is intended to protect-are likely targets of punishment. For example, among the first individuals prosecuted under the British Race Relations Act of 1965 and 67 were black power leaders.368 Their overtly racist messages undoubtedly expressed legitimate anger at real discrimination, yet the statute drew no such fine lines, nor could any similar statute possibly do so. Rather than curbing speech offensive to minorities, this British law instead has been regularly used to curb the speech of blacks, trade unionists, and anti-nuclear activists.369 In perhaps the ultimate irony, this statute, which was intended to restrain the neo-Nazi National Front, instead has barred expression by the Anti-Nazi League.370¶ The British experience is not unique. History teaches us that antihate speech laws regularly have been used to oppress racial and other minorities. For example, none of the anti-Semites who were responsible for arousing France against Captain Alfred Dreyfus were ever prosecuted for group libel. But Emile Zola was prosecuted for libeling the French clergy and military in his "J'Accuse," and he had to flee to England to escape punishment.371 Additionally, closer to home, the very doctrines that Professor Lawrence invokes to justify regulating campus hate speech-for example, the fighting words doctrine, upon which he chiefly relies-are particularly threatening to the speech of racial and political minorities. 372¶ The general lesson that rules banning hate speech will be used to punish minority group members has proven true in the specific context of campus hate speech regulations. In 1974, in a move aimed at the National Front, the British National Union of Students (NUS) adopted a resolution that representatives of "openly racist and fascist organizations" were to be prevented from speaking on college campuses "by whatever means necessary (including disruption of the meeting)." 373 A substantial motivation for the rule had been to stem an increase in campus anti-Semitism. Ironically, however, following the United Nations' cue,3 74 some British students deemed Zionism a form of racism beyond the bounds of permitted discussion. Accordingly, in 1975 British students invoked the NUS resolution to disrupt speeches by Israelis and Zionists, including the Israeli ambassador to England. The intended target of the NUS resolution, the National Front, applauded this result. However, the NUS itself became disenchanted by this and other unintended consequences of its resolution and repealed it in 1977.375¶ The British experience under its campus anti-hate speech rule parallels the experience in the United States under the one such rule that has led to a judicial decision. During the approximately one year that the University of Michigan rule was in effect, there were more than twenty cases of whites charging blacks with racist speech. 376 More importantly, the only two instances in which the rule was invoked to sanction racist speech (as opposed to sexist and other forms of hate speech) involved the punishment of speech by or on behalf of black students. 377 Additionally, the only student who was subjected to a full-fledged disciplinary hearing under the Michigan rule was a black student accused of homophobic and sexist expression.3 78 In seeking clemency from the sanctions imposed following this hearing, the student asserted he had been singled out because of his race and his political views.379 Others who were punished for hate speech under the Michigan rule included several Jewish students accused of engaging in anti-Semitic expression 380 and an Asian-American student accused of making an anti-black comment.38' Likewise, the student who recently brought a lawsuit challenging the University of Connecticut's hate speech policy, under which she had been penalized for an allegedly homophobic remark, was Asian-American. 382 She claimed that, among the other students who had engaged in similar expression, she had been singled out for punishment because of her ethnic background.383
28 -
29 -Governments can’t be trusted with the power to establish orthodoxy by law. Protection for expression of unpopular beliefs allows us to challenge existing social structures, which better solves for oppressive discourses in the long run.
30 -Bernstein ’03 - David E. Bernstein Prof., George Mason U. School of Law, “Defending the First Amendment from Antidiscrimination Laws,” 82 North Carolina Law Review 224 (2003).
31 -But even liberal civil libertarians who oppose laissez-faire economics and support civil rights laws have a compelling rejoinder to advocates of censorship. Civil libertarians can recognize that the free marketplace of ideas is imperfect, but still ask the most important question in political economy, "compared to what?" FN62 While much private speech is harmful, wrongheaded or dangerous, it's even more dangerous to put the government in charge of policing it. FN63 The alternative to an unregulated speech marketplace is to permit government censorship, leaving "the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us." FN64 For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the 'fairness' of political debate. As one scholar puts it: freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense. FN65¶ Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As Seventh Circuit Judge Frank Easterbrook wrote in an opinion striking down an anti- pornography statute inspired by academic feminists, "free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech . . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is." FN66 First Amendment scholar John McGinnis likewise notes that "government officials have a natural tendency to suppress speech antithetical to their interests . . . and that the free flow of information related to politics and culture threatens government hierarchies both by rearranging coalitions and revealing facts that will prompt political action." FN67¶ The framers of the American Constitution recognized that government, rather than inherently serving the public interest, is susceptible to capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as "rent-seeking." FN68 The Constitution and Bill of Rights attempted to establish a system of government that would limit such rent-seeking. FN69 The First Amendment's protection of freedom of expression was particularly important in this regard. The Founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways, to promote their own agendas, and/or to repress dissenting opinions. FN70 The Founders' insights have been confirmed by experience around the world, and by modern research into human political behavior by economists and evolutionary psychologists. FN71 Permitting government regulation of information relating to politics or culture would come at a very high price to society. FN72
32 -
33 -The right appropriates the language of the left to justify cultural censorship.
34 -Adler ’96 - Amy Adler Asst. Prof. of Law, NYU Law School, “What's Left: Hate Speech, Pornography, and the Problem for Artistic Expression,” 84 Cal. L. Rev. 1499 (1996). http://scholarship.law.berkeley.edu/californialawreview/vol84/iss6/1
35 -The failure of leftist censors to consider the shifting nature of language may lead to a nightmarish situation: they may end up silencing the David Wojnarowiczes of the world and not the David Dukes. Just as the political left often relies on far right-wing expressions of hatred as the source of its activist political critique, so the right-wing borrows the language of the left for its conservative agenda. For example, in the same way that David Wojnarowicz uses hate speech against homosexuals to make his gay activist point, conservative activists adopt the leftist rhetoric of discrimination and victimization and use it to fight against (traditionally leftist) anti-discrimination policies.19 David Duke speaks of "discrimination" suffered by "victimized" white men as he campaigns against affirmative action. 192 Reverend Don Wildmon, leader of the conservative anti-pornography, anti-homosexual American Family Association ("AFA"), 193 appropriates explicit homosexual images from David Wojnarowicz's work and distributes them in an anti-NEA, antihomosexual pamphlet.194 Stanley Fish has commented that "liberals and progressives have been slow to realize that their preferred vocabulary has been hijacked."195¶ How ironic that the left's rhetoric of censorship has itself been adopted by none other than Senator Helms in his tireless campaign to ban federal funding for sexual or "offensive" images in art. Helms' proposed funding legislation sounded as if it had sprung from the pages of Mari Matsuda. He sought to eliminate federal funding for artwork that "denigrates, debases or reviles a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national origin." 196 As one critic has noted, "the discourse of liberal... antidiscrimination legislation is being appropriated and re-articulated into a right-wing position that promotes a discriminatory politics of cultural censorship and ideological coercion.197¶ Does this not give leftist censors pause? Must not a politically motivated theory of speech-banning account for the way in which the same words or text can work both for or against any political goal? The very method by which the rhetoric of the left has been so quickly co-opted by the political right demonstrates that there is an unstable and manipulable quality to language. It is as if language's infidelity were before the left's very eyes.
36 -
37 -Student advocacy and protest has been central to progressive reform in the United States.
38 -Bohmer 2017 - Peter Bohmer Faculty member in Political Economy at the Evergreen State College, “A History of Student Movements and Activism at Evergreen State College and the Greater Nation,” Counter Punch (Web). October 5, 2016. Accessed February 15, 2017. http://www.counterpunch.org/2016/10/05/a-history-of-student-movements-and-activism-at-evergreen-state-college-and-the-greater-nation/
39 -Students and student movements have played a major role in struggles for reform and revolution in the United States and around the world. Before I turn to Evergreen, I will give a few examples, mainly from the United States in the 1960’s. I will also share a few conclusions based on many years of activism with student movements.¶ On January 1, 1959, the July 26th movement in Cuba overthrew the Batista dictatorship. Its leader was Fidel Castro and the majority of its members in the initial uprising in 1953 were students. In 1960, four students from North Carolina A and T University, a Black University, sat in at the local Woolworth counter in the section reserved for whites in Greensboro, North Carolina. They ordered coffee and refused to move and the police arrested them. Spreading rapidly throughout the South, these organized sit-ins are often considered the beginning of the powerful social movements of the 1960’s, especially the Civil Rights and Black Liberation Movement which were so central to the 1960’s. A major group was the Student Non-Violent Coordinating Committee, SNCC, which was composed primarily of Black college students. They played a central role in the organizing of Black communities in the South including but not limited to the right to vote. SNCC mainly worked off campus. They also opposed the war in Vietnam and the draft. Beginning later in the 1960’s, Black Student Unions (BSUs) and MEChAs (Chicano student group) demanded, rallied, protested and occupied college administration offices at college campuses throughout the country and won increased access to higher education, the creation of Black and Chicano Studies departments, and hiring of faculty and staff of color. Another major group that had chapters on hundreds of colleges through the U.S. was Students for a Democratic Society (SDS). They were primarily composed although not exclusively of white college students. SDS called for a participatory democratic society and played a major role in the growing movement against the U.S. war in Vietnam. They were also very active in struggles against racism and poverty. A constant discussion in SDS was whether to focus on organizing on or off campus. SDS and SNCC were both part of what is often called the New Left; groups interested in changing themselves and leading by example as they actively organized to transform society. As part of the new left but also as a reaction to the sexism within the New Left, a very powerful women’s liberation movement developed in the late 1960’s. It has had an important impact in changing for the better the lives and consciousness of women although sexism and patriarchy are still part of U.S. society, on and off campus.¶ Students and student movements cannot transform or revolutionize societies by themselves but have played an important and often igniting role throughout the world. So Don’t Sell Yourselves and Students Short! In May, 1968, an uprising and strike that began at French universities spread to workplace occupations by French workers and came close to making revolutionary change. A current example, although less far-reaching, is the major role students and youths have played in the Bernie Sanders campaign.¶ Student movements have been most important, powerful and effective when they connect issues of national and international importance to the campuses. An example from the 1960’s and 1970’s was protests on college campuses all over the country to Dow Chemical job recruiters. Dow was the principal maker of napalm and Agent Orange, which caused deaths, horrible burning of people, environmental destruction and birth defects of future generations on a massive scale in Vietnam, Laos and Cambodia. . Another example was the role of student movements in the 1960’s and 1970’s in support of the organizing efforts of the United Farmworkers (UFW) for the recognition of their union. Student groups boycotted grapes and got many campuses to ban grapes from large farmers that refused to recognize the union. A current example at Evergreen is the student group, the Farmworker Justice Committee, that supports the farmworkers at Sakuma farms in Burlington, Washington and the boycott of Driscoll berries until their union is recognized and the farmworkers get a fair contract. At the time of this writing, Sakuma Farms has accepted the vote by the farmworkers to be represented by the independent union, Familias Unidas por la Justicia.
40 -
41 -If students are taught to devalue the First Amendment, free speech will be devalued in society. Link turns hate speech disads because hate groups rely on authoritarian tactics to silence those who challenge them, like appeals to patriotism and national security.
42 -Lukianoff ’14 - Greg Lukianoff JD, Stanford Law School; president of the Foundation for Individual Rights in Education, Unlearning Liberty: Campus Censorship and the End of American Debate. Encounter Books: Kindle Edition (2014).
43 -In the very same way, however, the ideology behind censorship can also become an internalized value, and colleges, through example and miseducation, are teaching students the wrong lessons about freedom of speech. Public opinion plays a significant role in influencing how laws and even constitutional amendments are interpreted. If a generation of students is consistently shown and taught that censorship is not only acceptable but may even be a noble or romantic pursuit, one would expect to see the robust protections that we currently enjoy under the First Amendment erode, not only in the court of public opinion but eventually in the courts of law.
44 -
45 -Underview: Hate Speech and Harassment are not Constitutionally Protected
46 -Universities can restrict speech that creates a hostile environment, there is no need to sabotage free speech protections to do this.
47 -Chemerinsky, Erwin. JD from Harvard Law School, Dean of UC Irvine "Unpleasant speech on campus, even hate speech, is a First Amendment issue." William and Mary Bill of Rights 17 (2009). AJ
48 - The hard question in this area is when does speech cross the line and become harassment. There is the right to say hateful things on the campus of a public university, but there is not a right to threaten someone or create a hostile environment. In some instances, this may require difficult line drawing. But Professor Marcus offers no basis for analyzing how this line should be drawn and instead prescribes an approach that would allow punishing a great deal of speech that is unquestionably protected by the First Amendment. Put another way, any administrator in a public university who tried to follow Professor Marcus's approach would certainly be successfully sued for violating the First Amendment.
49 -Harassment is not constitutionally protected. The first amendment is wrongly invoked in defending harassment.
50 -Marcus ’08 - Kenneth L. Marcus Chair in Equality and Justice in America, Baruch College School of Public Affairs, The City University of New York; Staff Director, U.S. Commission on Civil Rights (2004-2008); delegated the authority of Assistant Secretary of Education for Civil Rights (2003-2004); General Deputy Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity (2001-2002), “Higher Education, Harassment, and First Amendment Opportunism,” 16 Wm. and Mary Bill Rts. J. 1025 (2008), http://scholarship.law.wm.edu/wmborj/vol16/iss4/5 AT
51 -These incidents highlight a puzzling phenomenon in contemporary constitutional culture. The puzzle has been the relatively recent appearance and eager acceptance, especially in higher education, of First Amendment or academic freedom arguments in areas which had long been beyond their reach. For at least the "first fifteen years of its development," the law of harassment had been well understood to regulate a sphere of constitutionally unprotected, proscribable conduct, even when it incidentally included the use of words.2' Yet in recent years free-speech arguments have become a favorite topic-changing device for defenders of all forms of harassment, 22 especially in post-secondary education where many are especially sensitized to issues of free speech and academic freedom. The tendency to construct harassing conduct as speech has important ramifications since the appearance of the First Amendment, with its powerful array of standards and presumptions, augurs ill for any area of regulation which is brought within its shifting boundaries. As Frederick Schauer put it, "Once the First Amendment shows up, much of the game is over., 23 And indeed, arguably, the game may now be over for harassment law, which is to say, free speech issues may have obtained too much traction in this area to be dismissed out of hand. On the other hand, it remains at best unclear as to whether the First Amendment is even salient as to this area of law.
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1 -2017-02-18 23:15:43.0
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1 -2016-10-29 21:11:17.0
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1 -Braden James
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1 -2016-11-06 01:01:01.0
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1 -Adam Bistagne
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1 -Mitali Mathur
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1 -Nadia Hussein
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1 -2017-02-05 01:30:15.0
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1 -Abbey Chapman
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1 -2017-02-18 23:15:41.0
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1 -John Overing
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1 -2017-03-04 05:07:45.691
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