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... ... @@ -1,22 +1,30 @@ 1 -Framework 2 -Policy analysis within debate should not be identical to policy analysis in the real world. Instead, we should prioritize impacts relevant to anti-colonial struggle when discussing resolutional policy proposals because debate’s educational prerogatives mandate focus on these impacts. This also requires holding both debaters accountable for their performance as representatives of a policy position. 3 -The judge voting for one side or the other does not actually cause the plan to happen, but the ideas that we advocate are real. If you have a chance to impact the real world through the debate round, that should be a prior question. 1 +Link 2 +Nuclear power will be replaced by coal construction and natural gas. 3 +Biello 2013, David. “How Nuclear Power Can Stop Global Warming,” December 12, 2013.http://www.scientificamerican.com/article/how-nuclear-power-can-stop-global-warming/. SD 4 +As long as countries like China or the U.S. employ big grids to deliver electricity, there will be a need for generation from nuclear, coal or gas, the kinds of electricity generation that can be available at all times. A rush to phase out nuclear power privileges natural gas—as is planned under Germany's innovative effort, dubbed the Energiewende (energy transition), to increase solar, wind and other renewable power while also eliminating the country's 17 reactors. In fact, Germany hopes to develop technology to store excess electricity from renewable resources as gas to be burned later, a scheme known as “power to gas,” according to economist and former German politician Rainer Baake, now director of an energy transition think tank Agora Energiewende. Even worse, a nuclear stall can lead to the construction of more coal-fired power plants, as happened in the U.S. after the end of the nuclear power plant construction era in the 1980s.∂ 4 4 5 -Don’t let them hide behind alarmist consequentialist claims that nuclear energy is necessary to save the world. Nuclear colonialism deploys discourses that justify the sacrifice of native peoples and land in the name of national interest. 6 -Endres 09 - Endres, Danielle. "The rhetoric of nuclear colonialism: Rhetorical exclusion of American Indian arguments in the Yucca Mountain nuclear waste siting decision." Communication and Critical/Cultural Studies 6.1 (2009): 39-60. MC 7 -Resistance to nuclearism comes in many forms, one of which is the body of scholarship called nuclear communication criticism. Within this corpus, Bryan Taylor and William Kinsella advocate the study of ‘‘nuclear legacies’’ of the nuclear production process.39 The material legacies of the nuclear production process include the deaths of Navajo uranium miners, the left-over uranium tailings on Navajo land, and Western Shoshone downwinders. However, nuclear waste is in need of more examination; as Taylor writes, ‘‘nuclear waste represents one of the most complex and highly charged controversies created by the postwar society. Perhaps daunted by its technical, legal and political complexities, communication scholars have not widely engaged this topic.’’40 One of the reasons that nuclear waste is such a complex controversy is its connection with nuclear colonialism. Nuclear communication criticism has focused on examination of the ‘‘practices and processes of communication’’ related to the nuclear production process and the legacies of this process.41 At least two themes in nuclear discourse are relevant to nuclear colonialism: 1) invocation of national interest; and 2) constraints to public debate. First, nuclear discourse is married to the professed national interest, calling for the sacrifices among the communities affected by the legacies of the nuclear production process.42 According to Kuletz, the American West has been constructed as a ‘‘national sacrifice zone’’ because of its connection to the nuclear production process.43 Nuclearism is tautological in its basic assumption that nuclear production serves the national interest and national security and its use of national security and national interest to justify nuclearism. The federal government justifies nuclear production, which disproportionately takes place on American Indian land, as serving the national security. This justification works with the strategy of colonialism that defines American Indian people as part of the nation and not as separate, inherently sovereign entities whose national interest may not include storing nuclear waste on their land. 8 -First, debate matters 9 -a) Tacit assumptions affect students’ development. Acting on assumptions that support those in power supports those power relations. Darder et al. 10 -Darder, Antonia, Baltodano, Marta, and Torres, Rodolfo. “Critical Pedagogy: An Introduction” in The Critical Pedagogy Reader, edited by Darder, Baltodano, and Torres. Second Edition. New York, Taylor and Francis, 2009. MO. Pg 6-7 11 -This phenomenon can be understood within the context of schooling in the following way. Through the daily implementation of specific norms, expectations, and behaviors, that incidentally conserve the interests of those in power, students are ushered into consensus. Gramsci argued that by cultivating such consensus through personal and institutional rewards, students could be socialized to support the interests of the ruling elite, even when such actions were clearly in contradiction with the students’ own class interests. As such, this reproduction of ideological hegemony within schools functioned to sustain the hegemonic processes that reproduced cultural and economic domination within the society. This process of reproduction was then perpetuated through what Gramsci termed “contradictory consciousness.” However, for Gramsci this was not a clean and neat act of one-dimensional reproduction. Instead, domination existed here as a complex combination of thought and practices, in which could also be found the seeds for resistance. 12 -b) Debate allows us to transform our realities, which makes it a key site of resistance to oppression – but only if we prioritize discussion of those impacts in the context of how to decide policy questions. The AC allows us to stand in solidarity with Native Americans who have spoken out about their suffering due to nuclear power. 13 -Freire, Paulo. “Pedagogy of the Oppressed.” In Oppression, Privilege, and Resistance, eds. Lisa Heldke and Peg O’Connor. New York: McGraw-Hill, 2004. Print. MO. Gendered language due to translation from Portuguese. Pp9-10 14 -The same is true with respect to the individual oppressor as a person. Discovering himself to be an oppressor may cause considerable anguish, but it does not necessarily lead to solidarity with the oppressed. Rationalizing his guilt through paternalistic treatment of the oppressed, all the while holding them fast in a position of dependence, will not do. Solidarity requires that one enter into the situation of those with whom one is solidary; it is a radical posture. If what characterizes the oppressed is their subordination to the consciousness of the master, as Hegel affirms, true solidarity with the oppressed means fighting at their side to transform the objective reality which has made them these “beings for another.” The oppressor is solidary with the oppressed only when he stops regarding the oppressed as an abstract category and sees them as persons who have been unjustly dealt with, deprived of their voice, cheated in the sale of their labor—when he stops making pious, sentimental, and individualistic gestures and risks an act of love. True solidarity is found only in the plenitude of this act of love, in its existentiality, in its praxis. To affirm that men are persons and as persons should be free, and yet to do nothing tangible to make this affirmation a reality, is a farce. ¶ Since it is in a concrete situation that the oppressor-oppressed contradiction is established, the resolution of this contradiction must be objectively verifiable. Hence, the radical requirement—both for the man who discovers himself to be an oppressor and for the oppressed—that the concrete situation which begets oppression must be transformed. 15 -Second, debate entails a unique obligation to prioritize anti-colonial struggle 16 -a) Small and symbolic acts of resistance are crucial to long-term change because they legitimate new ideologies. This is the only way to replace toxic worldviews with better ones. Gilmore 07 17 -Gilmore, Ruth Wilson. Associate Professor of Geography, Director of Program in American Studies and Ethnicity, University of Southern California Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California. London: University of California Press, 2007. Print. MO. Pp 242-244 18 -If we take to heart the fact that we make places, things, and selves, but not under conditions of our own choosing, then it is easier to take the risk of conceiving change as something both short of and longer than a single cataclysmic event. Indeed, the chronicles of revolutions all show how persistent small changes, and altogether unexpected consolidations, added up to enough weigh, over time and space, to cause a break with the old order. Certainly, the political forces that hold governmental power in the United States of the early twenty-first century figured this out and persisted for decades until they won. With persistence, practices and theories circulate, enabling people to see problems and their solutions differently—which then creates the possibility of further, sometimes innovative, action.¶ Such change is not just a shift in ideas or vocabulary or frameworks, but rather in the entire structure of meanings and feelings (the lived ideology, or “taking to heart”) through which we actively understand the world and place our actions in it (Williams 1961). Ideology matters along its entire continuum, from common sense (“where people are at”) to philosophies (where people imagine the coherence of their understanding comes from: Jesus, Mohammed, the Buddha, Marx, Malcom X, the market).¶ The bottom line is this: if the twentieth century was the age of genocide on a planetary sale, then in order to avoid repeating history, we ought to prioritize coming to grips with dehumanization. Dehumanization names the deliberate, as well as the mob-frenzied, ideological displacements central to any group’s ability to annihilate another in the name of territory, wealth, ethnicity, religion. Dehumanization is also a necessary factor in the acceptance that millions of people (sometimes including oneself) should spend part or all of their lives in cages.¶ 19 19 20 -b) As an educator, the judge has an obligation to re-shape our educational activity by adopting a historicized narrative that highlights mistreatment of indigenous people and other marginalized groups. 21 -hooks, bell. “overcoming white supremacy: a comment.” In Oppression, Privilege, and Resistance, eds. Lisa Heldke and Peg O’Connor. New York: McGraw-Hill, 2004. Print. MO. Pp 71 22 -Recently in a conversation with a white male lawyer at his home where I was a guest, he informed me that someone had commented to him that children are learning very little history these days in school, that the attempt to be all-inclusive, to talk about Native Americans, blacks, women, etc. has led to a fragmented focus on particular individuals with no larger historical framework. I responded to this comment by suggesting that it has been easier for white people to practice this inclusion rather than change the larger framework; that it is easier to change the focus from Christopher Columbus, the important white man who “discovered” America, to Sitting Bull or Harriet Tubman, than it is to cease telling a distorted version of U.S. history which upholds white supremacy. Really teaching history in a new way would require abandoning the old myths informed by white supremacy like the notion that Columbus discovered America. It would mean talking about imperialism, colonization, about the Africans who came here before Columbus (see Ivan Van Sertima’s They Came Before Columbus). It would mean talking about genocide, about the white colonizers’ exploitation and betrayal of Native American Indians; about the ways the legal and governmental structures of this society from the Constitution on supported and upheld slavery, apartheid (see Derrick Bell’s And We Are Not Saved). This history can be taught only when the perspectives of teachers are no longer shaped by white supremacy. Our conversation is one of the many examples that reveal the way black people and white people can socialize in a friendly manner, be racially integrated, while deeply ingrained notions of white supremacy remain intact. Incidents like this make it necessary for concerned folks, for righteous white people, to begin to fully explore the way white supremacy determines how they see the world, even as their actions are not informed by the type of racial prejudice that promotes overt discrimination and separation. 7 +After a ban on nuclear power, coal consumption would rise dramatically. Nakata 2002 8 +Toshihiko Nakata Professor at Tohoku University, “Analysis of the impacts of nuclear phase-out on energy systems in Japan” April 2002 9 +Fig. 3 illustrates the changes in the electric power generation under the nuclear phase-out case. The total energy consumption and the carbon dioxide emissions for four scenarios in the year 2041 are shown in Table 4. We can see three ways in which the system has adjusted to make up the nuclear boiler after its phasing out: ∂ The use of coal boiler and coal IGCC rise and the total coal consumption rises by four times. The use of gas combined-cycles and gas boiler rise gradually, and the total gas consumption ∂ grows by three times. The renewables are not seen in the electricity market. 10 + 11 +Germany proves that ending the production of nuclear power results in the increased use of coal. 12 +Lindsay Abrams (Staff Writer at Salon on sustainable energy), "Germany’s clean energy plan backfired", Salon, 07/30/2013, www.salon.com/2013/07/30/germanys_clean_energy_plan_backfired/ 13 +When a nuclear power plant closes, a coal plant opens. At least, that’s the way things are shaping up in Germany, where the move away from nuclear energy appears to have backfired. For the second consecutive year, according to Bloomberg, the nation’s greenhouse gas emissions are set to increase. German Chancellor Angela Merkel made headlines back in 2011 when, in the wake of the reactor meltdown in Tokyo, she announced the impending closure of Germany’s 17 nuclear reactors. Up until then, nuclear-generated energy contributed to a full quarter of the nation’s electricity. At the time, the closings were framed as a positive effort to increase the country’s use of clean energy. As an expert then predicted to the New York Times: “If the government goes ahead with what it said it would do, then Germany will be a kind of laboratory for efforts worldwide to end nuclear power in an advanced economy.” But predictably, when nuclear plants began to shut down, as eight immediately did, something else had to take its place. And coal, which according to Bloomberg is favored by the market, did just that. In the absence of a strong government plan to push natural gas and renewable forms of energy, the share of electricity generated from coal rose from 43 percent in 2010 to 52 percent in the first half of this year, according to the World Nuclear Association. 14 + 15 +Impact 16 + 17 +The use of coal leads to detrimental health issues and is largely responsible for global warming. Keating 2001. 18 +Martha Keating (Policy Advisor at U.S. Environmental Protection Agency), “Cradle to Grave: the Environmental Impacts from Coal”, Clean Air Task Force, June, 2001 SD 19 +The electric power industry is the largest toxic polluter in the country, and coal, which is used to generate over half of the electricity produced in the U.S., is the dirtiest of all fuels.1 From mining to coal cleaning, from transportation to electricity generation to disposal, coal releases numerous toxic pollut- ants into our air, our waters and onto our lands.2 Nation- ally, the cumulative impact of all of these effects is magnified by the enormous quantities of coal burned each year – nearly 900 million tons. Promoting more coal use without also providing additional environmental safe- guards will only increase this toxic abuse of our health and ecosystems. ∂ The trace elements contained in coal (and others formed during combustion) are a large group of diverse pollutants with a number of health and environmental effects.3 They are a public health concern because at sufficient exposure levels they adversely affect human health. Some are known to cause cancer, others impair reproduc- tion and the normal development of children, and still others damage the nervous and immune systems. Many are also respira- tory irritants that can worsen respiratory conditions such as asthma. They are an environmen- tal concern because they damage ecosystems. Power plants also emit large quantities of carbon dioxide (CO2), the “greenhouse gas” 2 largely responsible for climate change. 20 + 21 + 22 +The presence of coalmines in an area detrimentally affects the communities there, who are extremely poor minorities. Keating 2001. 23 +Martha Keating (Policy Advisor at U.S. Environmental Protection Agency), “Cradle to Grave: the Environmental Impacts from Coal”, Clean Air Task Force, June, 2001 24 +Children living in the vicinity of power plants have the highest health risks. Adults are also at risk from contami- nated groundwater and from inhaling dust from the facility. The poverty rate of people living within one mile of power plant waste facilities is twice as high as the national average and the percentage of non-white populations within one mile is 30 percent higher than the national average.51 ∂ Consequently, there may be other factors that make these people more vulnerable to health risks from these facilities. These include age (both young and old), nutritional status and access to health care. Also, these people are exposed to numerous other air pollutants emitted from the power plant smokestacks and possibly to air pollution from other nearby industrial facilities or lead paint in the home. Similar high poverty rates are found in 118 of the 120 coal-producing counties in America where power plant combustion wastes are increasingly being disposed of in unlined, under-regulated coal mine pits often directly into groundwater. ∂ Mineworkers and their families also often reside in the communities where the coal is being mined. Some of the additional health risks and dangers to residents of ∂ coal mining communities include injuries and fatalities related to the collapse of highwalls, roads and homes adjacent to or above coal seams being mined; the blasting of flyrock offsite onto a homeowner’s land or public roadway; injury and/ or suffocation at abandoned mine sites; and the inhalation of airborne fine dust particles off-site. 25 + 26 + 27 + 28 +Global warming leads to the extinction of people and animals. Urban 2015 29 +Mark C. Urban “Accelerating extinction risk from climate change” Science 01 May 2015: 30 +Overall, 7.9 of species are predicted to become extinct from climate change; (95 CIs, 6.2 and 9.8) (Fig. 1). Results were robust to model type, weighting scheme, statistical method, potential publication bias, and missing studies (fig. S1 and table S2) (6). This proportion supports an estimate from a 5-year synthesis of studies (7). Its divergence from individual studies (1–4) can be explained by their specific assumptions and taxonomic and geographic foci. These differences provide the opportunity to understand how divergent factors and assumptions influence extinction risk from climate change.∂ The factor that best explained variation in extinction risk was the level of future climate change. The future global extinction risk from climate change is predicted not only to increase but to accelerate as global temperatures rise (regression coefficient = 0.53; CIs, 0.46 and 0.61) (Fig. 2). Global extinction risks increase from 2.8 at present to 5.2 at the international policy target of a 2°C post-industrial rise, which most experts believe is no longer achievable (8). If the Earth warms to 3°C, the extinction risk rises to 8.5. If we follow our current, business-as-usual trajectory representative concentration pathway (RCP) 8.5; 4.3°C rise, climate change threatens one in six species (16). Results were robust to alternative data transformations and were bracketed by models with liberal and conservative extinction thresholds (figs. S2 and S3 and table S3).∂ Regions also differed significantly in extinction risk (ΔDIC = 12.6) (Fig. 3 and table S4). North America and Europe were characterized by the lowest risks (5 and 6, respectively), and South America (23) and Australia and New Zealand (14) were characterized by the highest risks. These latter regions face no-analog climates (9) and harbor diverse assemblages of endemic species with small ranges. Extinction risks in Australia and New Zealand are further exacerbated by small land masses that limit shifts to new habitat (10). Poorly studied regions might face higher risks, but insights are limited without more research (for example, only four studies in Asian ). Currently, most predictions (60) center on North America and Europe, suggesting a need to refocus efforts toward less studied and more threatened regions. - EntryDate
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... ... @@ -1,41 +1,0 @@ 1 -Framework 2 - First, in order to value our own humanity, we must value it in others. The standard ought to be practice of a solidarity grounded on common humanity. 3 -Reichlin, Massimo, “The role of solidarity in social responsibility for health”, Medicine, Health Care and Philosophy, Nov 2011. DM 4 -Human solidarity thus encompasses a concern for equal rights and fair equality of opportunity, but cannot be reduced to it. It adds a sense of belonging together that does not build on any particular identity of interests by the members of different social groups, but on the basic value of human dignity; it adds a sense of unity that does not aim at levelling the differences between different members, but incorporates the differences, not devaluing the individuality of particular cultures and histories. To the extent that it builds on the ‘naked’ humanity of the other, human solidarity acknowledges the rich diversity of individuals and of cultures, empathising with the several different paths along which human beings pursue their well-being and the meaning of their lives by constructing cultures and social traditions. Human solidarity is a disposition to feel and to act towards others that does not remove nor undervalues their otherness, but rather preserves it and promotes it.¶ In this perspective, solidarity is itself an element and a condition of the universalistic morality of justice; for the protection of individual rights calls for the defence of the soil in which such rights take their roots, of the form of life in which relationships of mutual recognition can flourish and human dignity can be respected. In this sense, the notion of solidarity can be conceived of as the connecting link between equal individual rights and the notion of common good; it is the ‘warm side’ of the Enlightenment insistence on individual rights, and the clearest denial of any purely negative and ‘cold’ interpretation of universal human rights. In fact, as already mentioned, while falling short of sentimental love or sympathy for humanity, human solidarity has a basic emotive component, being grounded on a sense of empathy and felt participation with the predicament of other human beings (Arnsperger and Varoufakis 2003). This emotive component, however, must not be emphasised to the point of reducing the justification of solidarity to the historical and contingent fact of feeling some kind of empathy towards fellow human beings. It is not just that we happen to have developed human solidarity, nor that we just happen to have come to believe in human rights, owing to the development of certain predispositions to feel about our brothers in humanity.4 The justification of solidarity rather lies in the fact that it singles out certain general features of being human that are valued throughout the different cultures and ways of life. Human solidarity is not based on immediate feelings; rather on the reflection—which emerged progressively, fighting against contrary feelings and perceptions—that human dignity is grounded on general features inherent in the human condition, not on traits that are specific to certain cultures and ways of life. It is based on the recognition that valuing humanity in ourselves implies valuing it in others, and that our own humanity and dignity is not quite safe, unless the humanity and dignity of our fellow humans is protected as well. 5 - 6 -Second, spatial identity is fundamental to human functioning – The human need for familiar places is common to all because such places represent the accumulated history of our experiences and relationships and are the sites of our hopes and aspirations. 7 -Fried, Marc Research Professor and Director, Institute of Human Sciences, Boston College, “ Grieving for a Lost Home: Psychological Costs of Relocation”, The Urban Condition, 1963. DM 8 -In stressing the importance of places and access to local facilities, we wish only to redress the almost total neglect of spatial dimensions in dealing with human behavior. We certainly do not mean thereby to give too little emphasis to the fundamental importance of interpersonal relationships and social organization in defining the meaning of the area. Nor do we wish to underestimate the significance of cultural orientations and social organization in defining the character and importance of spatial dimensions. However, the crisis of loss of a residential area brings to the fore the importance of the local spatial region and alerts us to the greater generality of spatial conceptions as determinants of behavior. In fact, we might say that a sense of spatial identity is fundamental to human functioning. It represents a phenomenal or ideational integration of important experiences concerning environmental arrangements and contacts in relation to the individual's conception of his own body in space. It is based on spatial memories, spatial imagery, the spatial framework of current activity, and the implicit spatial components of ideals and aspirations. 9 - 10 -Plan 11 -Plan Text: The member states of the European Union will ban the production of commercial land-based nuclear electricity and phase out all nuclear power plants by 2025. 12 -INFORSE, International Network for Sustainable Energy- Europe, “ECOs for a Nuclear-Free Europe.” nd. Acc 17 sep 2016. MO. http://www.inforse.org/europe/nucefree.htm 13 -The phase-out of nuclear power in Europe is an important part in the development of an energy sector without adverse effects or special risks to the environment and to human health. A number of environmental ministers agreed upon this in Sofia in 1995. We call upon all countries to join this effort, and to set a time-frame for the phase-out. ¶Further, we call upon the countries to transform into actions the agreements made in Sofia and Luzern to phase out the most dangerous nuclear power plants. Concrete plans and timetables for the phase-out are absolutely necessary. The plans must be backed up by international cooperation as well as by support from other countries and international organisations like the EU and EBRD. This support should include a safe phase-out as well as the development of alternative supplies and energy conservation to meet the demand. ¶Finally, we call upon all countries and international organisations to stop the planning, funding, and construction of new nuclear power plants immediately. The present preferential treatment of nuclear power plant in the EU and elsewhere should be stopped immediately. 14 -INFORSE 2 clarifies the details of the plan 15 -INFORSE, International Network for Sustainable Energy- Europe, “Sustainable Energy Vision for the EU-27 – Phase out of Fossil and Nuclear Energy Until 2040.” July 2011. Acc 17 sep 2016. MO. http://www.inforse.org/europe/VisionEU27.htm 16 -The European Sustainable Energy Vision includes a vision for the transition of the energy supply and demand for the 27 EU countries to 100 renewable energy together with phase-out of fossil and nuclear energy until 2040. With the vision and the underlying scenario is a reduction of CO2 emissions from energy use of just above 40 until 2020 and just above 70 until 2030 from the 1990 level for all energy use except aviation and international navigation that are not included in the scenario and vision.¶ The new EU-countries already had large reductions since 1990, so the reductions proposed are larger than for the 15 "old" countries from 1990, but smaller from 2000. The scenario is based on technical and economic realistic developments of energy efficiency, renewable energy, interactive ("smart") grids, and social developments. Since the developments are technical and economical feasible, the main question for their realisation is the political will in the 27 EU countries.¶ The INFORSE vision for the EU is based on a scenario made with INFORSE's spreadsheet tool that describes the possible development of energy flows decade by decade, with 5 year steps. The current Sustainable Energy Vision for EU-27 is made in 2010 and is based on earlier versions from 2008, 2007 and 2004. Economic assessments are made for some of the EU countries.¶ The Need to Limit Greenhouse Gas Emissions As we already experience problems of changing climate, it is no longer possible to avoid harmful climate change; but by reducing emissions we can reduce the frequency of larger climate catastrophes that deprives larger populations of their homes, livelihoods, or even lives. The EU has agreed to reduce global warming to 2'C; but that might no even be enough to avoid major negative climate effects. Reductions of the 27 EU countries of 40 in 2020 and 70 in 2030 on the way to phase out fossil fuels and similar sharp reductions in other countries (developing countries emissions should peak until 2017), will give 70-85 certainty that the global average temperature will remain below 2'C.¶ Read more about the needs to limit greenhouse gases. Factor 4 for Energy Efficiency Until 2050, Starting With Ecodesign and then Factor 2 Until 2030 In line with the global vision, the European Vision is based on rapid growth of energy efficiency to reach an average level in 2050 similar to best available technologies today. Most energy consuming equipment will be changed several times until 2050, and if new generations of equipment are made with optimal energy performance, and markets are made to promote the most efficient technology, it will not be a problem to reach today's best available technology, even though the efficiency gains required are very large, - in the order of 4 times, similar to an annual increase of efficiency of over 2 per year from 2010. This will not happen by itself, given that the "natural" technological development has been 1 per year or less. It will require concerted action from all stakeholders involved, but indications are that if the market is large enough for each new generation of efficient equipment, it will be a cost-effective development - the extra equipment costs will be off-set by energy savings. It will also benefit equipment manufacturers that will get better products, also for the world market.¶ The EU countries are already increasing their energy efficiency with an increasing rate compared with the period before 2005, when the EU Ecodesign Directive entered into force. If the currently planned Ecodesign regulation and energy efficiency labelling is passed, and it is followed by national energy efficiency promotion, the energy efficiency can increase 25 until 2020 from 2005. If the current best available technology on the market becomes the norm by 2030, the energy efficiency increase can be 45 for the sector covered by Ecodesign regulation. If the development continues toward the factor four energy efficiency, by 2040 the energy efficiency increase can be 60 or maybe more. ¶ These increase in energy efficiency do not mean that the consumption is reduced with 25, 45 or 60, as the demand for energy services will increase, but substantial energy demand reductions are indeed possible, if ambitious energy efficiency policies are combined with policies to limit the growth of energy services. The sectors covered by Ecodesign is electricity consuming products for household, service sector and to some degree productive sectors. Regulation of energy efficiency in industry, and a higher effective energy price, can lead to the same savings in industry, and even slightly higher savings in industrial heating. For agriculture a slower introduction of energy efficiency is expected.¶ The Challenge of Reducing Heat Consumption For buildings, the situation is different from equipment because buildings often have lifetimes of 100 years or more. Most of the houses to be heated in 2050 are probably already built. In this vision the target heat consumption is 66 kWh/m2 as average in 2040. This will require about a 58 reduction compared with year 2000 EU-27 average, but "only" 53 compared with the 2010 level as the specific heat consumption did reduce considerably in the decade since 2000. (in 2000 the EU average heat consumption in dwellings was 158 kWh/m2 according to the Odysee database, while in 2008 it was only 139 kWh/m2, a reduction of 12. If this is corrected for weather differences between the two years, the reduction was 9. Therefore we expect an 11 reduction 2000 - 2010). If energy-efficiency measures are included in renovations, such a change is possible. The increase in efficiency is estimated to be 2.5/year from 2010, on top of the 11 total 2000-2010. This could be realised by: • raising building-codes to current low-energy housing levels within 1-3 years, • require that all major renovations include a major energy-renovation, • increase energy renovations with financing, advice, campaigns, etc., and • embark on a major program for passive-houses to achieve that the majority of new buildings are built as passive houses, as required before 2020 by the Energy Performance of Building's Directive.¶ Passive houses" are buildings where internal energy sources and passive solar energy supply close to 100 of the demand for space heating, also called "near zero energy houses".¶ Efficient Transport There are very large potentials for energy efficiency in the transport sector. For the first decade the EU agreement to decrease CO2 emissions to 95 g/km in 2020 will increase energy efficiency of new cars with 41 from 2000, where the average emission was 160 g/km. For the car fleet average we therefore expect a 19 reduction 2000 - 2020. From 2020 the vision includes a large-scale shift to electric cars that are 4 times as efficient as cars with combustion engines. After 2030 is also expected a massive shift to hydrogen and hydrogen-electric cars. With the expected transition to electric and hydrogen cars, the energy efficiency increase be 54 until 2030 and 67 by 2040, compared with 2000. The efficiency increase until 2050 will be 75 compared with 2000, so the cars will then be 4 times as efficient. This is made by a combination of the shift to electric vehicles and hydrogen fuel cell vehicles, the more efficient technologies, as planned until 2020, and use of break-energy recovering. The biofuel is only expected to play a minor role, fuelling about 3 of the cars in 2050, as it is an inefficient technology similar to traditional petrol-fuelled cars.¶ For rail and navigation is "only" included increase in efficiency gains of 46, and 32 respectively, but trains will remain more efficient than cars for both personal and freight transport, and they are expected to take over substantial transport from roads in the vision.¶ Will Higher Efficiencies Be Possible? There is not doubt that higher efficiencies will be possible than the factor 2-4 increases included in this vision; but given the current difficulties with realisation of efficiency potentials in many European countries, the efficiency increases proposed in this vision have been limited to the factor 2-4. It is proven that for individual industrial companies and houses, factor 4-10 is possible as increase in efficiency. The challenge is to realise the efficiency on national and international levels.¶ Decoupling Growth The growth of energy services, i.e. heated floor space, transported goods and people, energy consuming production, is expected to reach saturation levels during the 50-year period of the vision. This is in line with the perception that the average Western Europeans have reached a sufficient level of material consumption to satisfy needs, and that material growth should gradually be stopped leaving environmental space for the poorer parts of the world. The new EU countries are expected to have higher material growth in the first decades and then gradually lower growth as they approach EU-average. If the gradual reduction of growth of energy services is to be realised, it will require that the growth of energy services does not follow the expected economic growth, i.e. that the economic growth is decoupled from growth in material consumption such as energy services. Alternatively the economic growth should reduce, as it has in recent years. If economic growth continues with 2.5 per year, GDP will double every 30 year, and will have increased 3.4 times in 50 years. A 2.5 economic growth is a normal growth rate that economists typically expect (or hope) for Western European countries. If this level of economic growth is to continue, the challenge for realisation of the sustainable development described with this vision is to triple the economic value expressed as GDP compared with energy consuming structures and activities. Assumed average EU growth in energy services until 2040:¶ Floor space, household: 30 increase 2000 - 2040 with 11 in the first decade and 5/decade after 2010.¶ Electric appliances in households: higher growth than floor space, i.e. 36 in the period 2000 - 2040 ¶ Industry: no growth in physical production volume, i.e. 0 in growth 2000 - 2050, but substantial growth in electrification. The value of the products are also expected to grow.¶ Service sector: 55 growth in physical activities 2000 - 2040 and in addition increased electrification, so the energy demand level for electrification will increase 64 in the period. Physical activity level increased about 30 2000 - 2010.¶ Personal transport: the vision includes a 19 reduction in private car use from 2000 to 2040 and a doubling in train and tram use as well an increase in bus use of 20. As car use is expected to grow 9 2000 - 2010, the proposed reduction from 2010 to 2040 is 25, which is expected to happen gradually from 2020, when the new public transport is available. This is a vision of a more human and sustainable transport. ¶ Freight transport: the vision includes a 26 reduction in road freight combined with 2.25 times increase in rail freight from 2000 to 2040. Given the expected increase in road freight of 24 from 2000 to 2010, the reduction with 2010 as basis will be about 40. In addition to modal shift, this large reduction is expected by applying a real cost on road transport and thereby avoiding long-distance transport of low-value goods where the transport generates little economic or societal benefits.¶ For the 12 "new" EU countries is expected higher growth than for EU average, mainly for the service sector and in road transport. For both these sectors is expected a 2 - 2.5 times increase above the 2000-level of activities, even more for some countries.¶ The developments of energy services in electricity consumption and transport is below current trends, and require new policies to be realised. For electricity consumption the policies can be to discourage the very inefficient use of direct electric heating, consumer information on total energy demand rather than energy efficiency, and product taxation based on total energy consumption. For transport the measures include, among others, environmental taxes on transport including road pricing and increased petrol taxes, land-use planning to reduce transport, stop of tax breaks to increase transport, stop for subsidizing road construction. See also INFORSE-Europe Energy Sufficiency Page.¶ Renewable Energy Targets The vision follows the target proposed by a large number of NGOs and the European Parliament of 25 renewable energy in 2020. The target for 2030 is 57 and in 2040 above 98.¶ Windpower The growth in windpower have been strong in recent years, with capacities added of about 9000 MW/year in recent years for the EU. This growth is expected to continue with growth of 10000 MW/year until 2020 and then 14,000 MW/year until 2040. The European wind industry has the capacity to develop windpower much faster, but the siting etc. seems to be the limiting factor. Then there will be 460,000 MW of windpower in the EU, including off-shore turbines. This will give a windpower production of of 1150 TWh/year, similar to the potential used in the European Renewable Energy Council's (EREC's) "Rethining2050" report from 2010. The figures correspond well with previous figures from the Windforce'10 report made by European Wind Energy Association, Greenpeace and Forum for Energy and Development and later updated by INFORSE-Europe for Europe. See Windforce-text.¶ Solar Solar heating as well as solar electricity are expected to play large roles. Solar heating can cover at 10-30 of the heating demand, and more if seasonal storage is introduced. The development is expected to continue from current trends. The solar heating development is expected to start with the current large expansion that was 2.7 times in the period 2005 - 2010 and then continue with the same increase rate until 2020, when there will be 360 mill. m2 solar collectors. Then we expect a slightly slower large-scale increase leading to 1 billion m2 in 2030 and about 2 billion m2 by 2040 equal to 4.1 m2/person by 2040. The development after 2010 is considerably stronger than forecasted by EREC. The development after 2030 will require some energy storages of 1-3 months in some (Northern) parts of EU, to reach the expected solar coverage of 1/3 of buildings demand for space heating and hot water.¶ The installed capacity for solar electric generation was 16,000 MW by the end of 2009 and is expected to take off as costs are reaching grid parity in more and more parts of EU. The expectations are for all solar electric capacity (PV and solar thermal electric) the following development: - 150,000 MW in 2020, 180 TWh, - 400,000 MW in 2030, 480 TWh, and - 700,000 MW in 2040, 840 TWh This is in line with forecasts by EREC in the "Rethining2050" report from 2010.¶ Biomass While the biomass growth has been lower than expected for instance in the EU White Paper for Renewable Energy from 1997, use of solid biomass has grown substantially from a level of 2100 PJ in 2000 for the EU-15, and is expected to grow further to 4100 PJ in 2020 in the EU-15, a limit proposed by the German Advisory Council on Global Change in 2003. The limit for the 12 new countries is set to 1800 PJ, following other estimates, and a total for EU of 5900 PJ.¶ In addition to solid biomass is included use of biogas of 750 PJ (210 TWh gas), 8 times the level in 2000 for EU-15 and 125 PJ for the 12 "new" countries, in total 875 PJ. The increase in biogas use is based on an estimation of a total biogas potential in EU-15 of 209 TWh from Biogas in Europe: A General Overview by Jens Bo Holm-Nielsen, MSc. and Teodorita AI Seadi, Sc, Southern Danish University.¶ Energy forests are expected to be used after 2010, in addition to the solid biomass from existing sources, and to reach a level of about 7 of present agricultural land by 2020 and 9 by 2040. This is expected to give a total energy input of 2600 PJ in 2040.¶ In addition to this is included liquid biofuels, to be used in transportation, construction and other sectors. The use of biofuels is expected to reach about 500 PJ. This can be produced with use of about 7 of the agricultural land extensively, i.e. with crops that also produce fodder and without extra demand for agricultural inputs. This will fuel about 3 of transport demand for land transport, but will provide about 10 of the energy input as biofuel vehicles are much less efficient than electric transport. With this ,the 10 renewables in transport target by 2020 will not be reached with biofuels, but with the expected transition to 10 electric and hydrogen vehicles in 2020, the target can be reached in this way.¶ Hydropower For hydropower is expected a 20 growth for EU-15. This is similar to the growth expected in the EU White Paper for Renewable Energy, but it is only expected to be realised by 2020. For the "new" countries is expected about 65 growth in average, including renovation of many smaller hydropower plants that were abandoned 1945-1990. The total potential in the new countries is substantially bigger than that, but many of the proposed large-scale hydropower projects are not included because of their problematic environmental effects.¶ Geothermal Energy and Others The use of geothermal energy for heating and electricity is expected to produce 1400 PJ of energy in 2040 for all EU countries, primarily for heating. This is lower than the potential identified by EREC in its "Rethining2050" report from 2010, because in the INFORSE-Europe vision is only included about 1/3 of the additional long-term potential in "Rethinking2050", as this is somewhat undertain, such as the use of heat from hot dry rock.¶ In addition to geothermal energy that is energy from the earth, comes contributions from heat pumps that collects ambient heat which from the soil, water, air, etc. Heat pumps are are expected to play a role to balance the electricity load, primarily for the EU-15 that have the highest fraction of intermittent electricity production.The heat pumps are expected to collect about 1500 PJ in 2040 including more than 500 PJ for heat pumps in district heating and 600 PJ for heat pumps in dwellings. Heat pumps can give some new flexible electricity demand, as explained below.¶ Other renewables, such as wave-power can also play a large role in the future, but have not been assessed for this vision. They could give a considerable contribution after 2020.¶ Nuclear and Fossil Energy Nuclear energy is expected to be phased out as the current nuclear reactors are stopped because of age, safety problems etc. This is expected to happen mainly 2015-2025. For fossil fuels are expected a gradual phase-out until 2040. A change from coal to gas is expected in the period 2010 - 2020, and a closure of primarily coal fired power plants 2010 - 2030.For space heating is expected a rapid phase out of oil and coal heating followed by a replacement of gas heating with district heating and heat pumps. 17 - 18 -Advantage One is Nuclear Disaster 19 -Toss out the perception of nuclear plants humming away in the middle of empty fields. That exists in North America but not in Europe, where there are no such open spaces. The countryside is dominated by small towns that will inevitably be destroyed by even the smallest nuclear mishap. The population is six times more dense than in the USA. Europe is populated too densely to ensure the safety of its people in case of an accident. It doesn’t need to be Fukushima; it just needs to be inevitable. 20 -Petrangeli, Gianni. Consultant to the IAEA (International Atomic Energy Association) and researcher for nuclear safety for the European Commission; member of the Faculty Council for the Doctorate in Nuclear and Industrial Safety, University of Pisa, Italy Nuclear Safety. Butterworth-Heinemann, 2006. Google Books. MO. Pp5 21 -In Europe, the need to take account of the specific plant features for the evaluation of the acceptability of the site arises from the much higher population density in Europe in comparison with that of the USA (approximately 200 inhabitants per square kilometre and 30 per square kilometre, respectively). It is therefore much more difficult to find low population sites in Europe.¶ The different population densities in Europe and the USA has also brought about differences in accident emergency plans: in the USA, the provision of a complete evacuation of the population within 16 km of the plant in a Few hours is adopted, while in Europe the maximum comparable distance is equal to 10 km. It is indeed difficult to assure the evacuation of population centres with tens, hundreds or thousands of inhabitants. Here too, the countries’ differences in demographic conditions has to be compensated by additional plant features (generally, the use of double containment provided with inter- mediate filtration systems and the use of elevated stacks). 22 -Thousands will suffer from radiation sickness, but many thousands more will lose their homes. People can be evacuated – the major risk of nuclear power isn’t cancer. It’s the disruption of everyday life and loss of community. Any risk is an unacceptable risk when people’s homes and communities are at stake. 23 -Buongiorno, J., et al., “Technical Lessons Learned from the Fukushima-Daichii Accident and Possible Corrective Actions for the Nuclear Industry: An Initial Evaluation”, MIT Center for Advanced Nuclear Energy Systems, May 2011. DM 24 -Permanent and long-term relocation can reduce exposure to radiation to essentially zero levels above natural background. What is gained is the elimination of a tiny additional risk of cancer (maximum risk of 42.2 instead of 42.0 at 20 mSv). This cancer, if it appears, will be diagnosed many years, perhaps decades, in the future. But this gain comes with very significant costs. The costs include loss of home or farm (48,000 homes and over 400 livestock or dairy-farming households are in the evacuation region), loss of privacy (shelters are crowded and residence time is expected to be measured in months before alternative temporary housing will be available), and loss of community (whole towns and villages have been evacuated). Prohibition against consuming contaminated food and water results in no additional internal dose but, for a country already facing food shortages following a devastating earthquake and tsunami, the loss of valuable foodstuffs and interdiction of farmlands are a significant price to pay. 25 -The best data suggests that the possibility of another accident in the next 50 years at least as bad as Fukushima is a coin-toss. Nuclear accidents are a huge threat to European communities. 26 -MIT Technology Review, “The Chances of Another Chernobyl Before 2050? 50, Say Safety Specialists’” April 17, 2015. DM 27 -However, the largest accidents appear to follow an entirely different statistical distribution, probably because they occur as a result of set of entirely unforeseen combinations of circumstances.¶ These kinds of large unexpected events are known as dragon king events and particularly difficult to analyse because they follow this different distribution, have unforeseen causes, and are few in number.¶ Nevertheless, Wheatley and co say their data suggests that the nuclear industry remains vulnerable dragon king events. “There is a 50 chance that a Fukushima event (or larger) occurs in the next 50 years,” they say.¶ Fukushima was by far the most expensive accident in history at a cost of $166 billion. That’s 60 per cent of the total cost of all other nuclear accidents added together.¶ The team calculate that a Chernobyl-scale event, the most severe in terms of radiation release, is as likely as not in the next 27 years. And they say a Three Mile Island event in the next 10 years has a probability of 50 percent. 28 -Also, nuclear plants are so complicated that we cannot safeguard against any substantial proportion of possible accidents. Another accident will occur, even if we don’t know when. Relying on increased safety regulations is like saying that a shotgun is less accurate than a rifle; you’re dead either way. 29 -Perrow, Charles. Professor Emeritus of Sociology, Yale University “Fukushima and the inevitability of accidents.” Bulletin of the Atomic Scientists 67.6 (2011): 44-52. MO. 30 - This litany of regulatory failures, failures to heed warnings, and commonplace failures is independent of normal accident theory. That theory says that even if we had excellent regulation and everyone played it safe, there would still be accidents in systems that are highly Òinteractively complex,Ó and if the systems are tightly coupled, even small failures will cascade through them. The theory is useful for its emphasis on system complexity and tight coupling; these concepts play a huge role in analyzing the failures of any source in risky systems. In the financial meltdown, for example, the mounting complexity of the overall system allowed fraud and self-dealing to go undetected, and the tight coupling of many systems allowed the failures to cascade. ¶In my work on Ònormal accidents,Ó I have argued that some complex organizationsÑsuch as chemical plants, nuclear power plants, nuclear weapons systems, and, to a more limited extent, air transport networksÑhave so many nonlinear system properties that eventually the unanticipated interaction of multiple failures may create an accident that no designer could have anticipated and no operator can understand.¶ Everything is subject to failureÑ designs, procedures, supplies and equipment, operators, and the environment. The government and businesses know this and design safety devices with multiple redundancies and all kinds of bells and whistles. But nonlinear, unexpected interactions of even small failures can defeat these safety systems. If the system is also tightly coupled, no intervention can prevent a cascade of failures that brings it down.¶ I use the term ÒnormalÓ because these characteristics are built into the systems; there is nothing one can do about them other than to initiate massive system redesigns to reduce interactive complexity and to loosen coupling. Companies and governments can modularize integrated designs and deconcentrate hazardous material. Actually, though, compared with the prosaic cases previously mentioned, normal accidents are rare. (Three Mile Island is the only accident in my list that qualifies.) It is much more common for systems with catastrophic potential to fail because of poor regulation, ignored warnings, production pressures, cost cutting, poor training, and so on. 31 -Fukushima isn’t even the worst-case scenario – nuclear disasters carry profound global implications as they are potentially fatal to the functioning of whole countries. 32 -Downer, John Global Insecurities Centre, School of Sociology, Politics and International Studies, Bristol University, “In the Shadow of Tomioka: On the institutional invisibility of nuclear disaster”, London School of Economics and Political Science Discussion Paper, December 2014. DM 33 -Even putting environmental and health implications of such an event aside, the fact that a single technological disaster could realistically have felled Japan’s capital city should weigh inexorably on the scales of any political calculation about nuclear power. Tokyo, arguably the most populous metropolitan area in the world, is home to over 35 million people: twice the population of New York, three times that of London. Together with those cities, it is widely considered one of the three ‘command centres’ of the global economy, with a GDP estimated at US$1,479 trillion in 2008 – the highest of any city on the planet. Should it have been lost in the fashion of Pripyat or Tomioka, the social, cultural and economic fallout would have been profound. The economic consequences alone would have represented a financial Götterdämmerung. The direct costs of losing Tokyo and repopulating its residents, combined with the lost revenues and opportunity costs associated with doing so, are difficult to estimate. There can be no doubt, however, that they would have been a profound shock to the global financial markets. At the very least, they would have jeopardised Japan’s ability to service its national debt. Critics have dismissed the Prime Minister’s statement about his nation’s sovereignty hanging in the balance as rhetorical embroidery, but in this context his assessment seems entirely sober. For all the manifest shortcomings of other energy options, it is difficult to imagine that any offer risks on such a scale. 34 -The mental health effects of nuclear catastrophe are a second disaster. At the very least, the aff plan ameliorates the fear that another disaster will happen. 35 -Worland, Justin. “This May Be the Biggest Health Threat From Fukushima—And It’s Still Ongoing,” Time, March 11, 2016. DM 36 -The 2011 earthquake that struck in Japan killed more than 15,000 people as buildings crumbled and tsunami surged. The meltdown at a local nuclear power plant led to lasting adverse health effects and the relocation of half a million area residents.¶ Now, five years after the incident, the lasting effects of the earthquake continue to threaten tens of thousands of residents of affected communities as survivors battle a mental health crisis of untold proportions.¶ “This is an ongoing disaster in a literal sense—not just rhetorically,” says Irwin Redlener, a professor at Columbia University who studies natural disasters. “The challenges they’re experiencing now are really overwhelming.”¶ The lingering chaos of the disaster represents perhaps the biggest contributor to ongoing mental health issues. Research published this week in the Journal of Epidemiology and Community Health this week shows that two thirds of residents who lived in the evacuation zone have moved more than three times since the disaster, suggesting they have been unable to resettle in a stable location. Nearly 40 of families had been separated by relocation.¶ A lack of trust in government authorities charged with protecting community health has also contributed to mental health problems. The country has continued to source huge portions of its power from nuclear plants and has not backed off plans to increase their use. Many residents live in fear that another disaster may be just around the corner. This overarching environment of suspicion and mistrust of the government carries over to other personal relationships. Some also experience stigma from those who think they may suffer from radiation. Others worry that their food may be affected by radiation.¶ Instability and distrust both contribute to a number of conditions faced by disaster survivors—from post-traumatic stress disorder (PTSD) to depression. The new research attributes a spike in the regional suicide rate to the ongoing consequences of the disaster. The suicide rate in affected regions in Japan ranged from 110 to 138 deaths per 100,000 people in 2014, compared with just below 20 deaths per 100,000 people nationwide.¶ The disaster’s continuing mental health effects can be particularly devastating for children who have been displaced. Many have jumped between schools and have been separated from family members.¶ And the problem only worsens with each move or school swap.¶ “Their ability to be resilient is eroded over time,” says Redlener. “Children are very susceptible to the family dynamic, in addition to whatever trauma they may have experienced themselves.” 37 - 38 -Underview 39 -We should reject appeals to normative theories that justify the shifting of risk to others for selfish benefit. 40 -Taleb, Nassim arrogant asshole and Constantine Sandis, “The Skin In The Game Heuristic for Protection Against Tail Events,” Review of Behavioral Economics, 2014. DM 41 -The skin in the game heuristic is best viewed as a rule of thumb that places a pragmatic constraint on normative theories. Whatever the best moral theory (consequentialism, deontology, contractualism, virtue ethics, particularism etc.) or political ideology (socialism, capitalism, libertarianism) might be, the "rule " tells us that we should be suspicious of people who appeal to it to justify actions that pass the cost of any risk-taking to another party whilst keeping the benefits for themselves. At the heart of this heuristic lies a simple moral objection to negative asymmetry that lies at the heart of some of the oldest and most famous moral ideas, as illustrated in Table 2.¶ Of course the clearest examples of any rule are likely to stem from a deontological approach, but the skin in the game constraint is not committed to deontology. Indeed, moral symmetry is one of the key ideas behind many forms of social contract theory (e.g. "I scratch your back, you scratch mine"), and different emphases on symmetry may also be found in consequentialism (which places the overall good above that of the agent) and virtue ethics (which looks for an ethical mean between excess and deficiency). - EntryDate
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... ... @@ -1,43 +1,0 @@ 1 -Framework 2 - First, in order to value our own humanity, we must value it in others. The standard ought to be practice of a solidarity grounded on common humanity. 3 -Reichlin, Massimo, “The role of solidarity in social responsibility for health”, Medicine, Health Care and Philosophy, Nov 2011. DM 4 -Human solidarity thus encompasses a concern for equal rights and fair equality of opportunity, but cannot be reduced to it. It adds a sense of belonging together that does not build on any particular identity of interests by the members of different social groups, but on the basic value of human dignity; it adds a sense of unity that does not aim at levelling the differences between different members, but incorporates the differences, not devaluing the individuality of particular cultures and histories. To the extent that it builds on the ‘naked’ humanity of the other, human solidarity acknowledges the rich diversity of individuals and of cultures, empathising with the several different paths along which human beings pursue their well-being and the meaning of their lives by constructing cultures and social traditions. Human solidarity is a disposition to feel and to act towards others that does not remove nor undervalues their otherness, but rather preserves it and promotes it.¶ In this perspective, solidarity is itself an element and a condition of the universalistic morality of justice; for the protection of individual rights calls for the defence of the soil in which such rights take their roots, of the form of life in which relationships of mutual recognition can flourish and human dignity can be respected. In this sense, the notion of solidarity can be conceived of as the connecting link between equal individual rights and the notion of common good; it is the ‘warm side’ of the Enlightenment insistence on individual rights, and the clearest denial of any purely negative and ‘cold’ interpretation of universal human rights. In fact, as already mentioned, while falling short of sentimental love or sympathy for humanity, human solidarity has a basic emotive component, being grounded on a sense of empathy and felt participation with the predicament of other human beings (Arnsperger and Varoufakis 2003). This emotive component, however, must not be emphasised to the point of reducing the justification of solidarity to the historical and contingent fact of feeling some kind of empathy towards fellow human beings. It is not just that we happen to have developed human solidarity, nor that we just happen to have come to believe in human rights, owing to the development of certain predispositions to feel about our brothers in humanity.4 The justification of solidarity rather lies in the fact that it singles out certain general features of being human that are valued throughout the different cultures and ways of life. Human solidarity is not based on immediate feelings; rather on the reflection—which emerged progressively, fighting against contrary feelings and perceptions—that human dignity is grounded on general features inherent in the human condition, not on traits that are specific to certain cultures and ways of life. It is based on the recognition that valuing humanity in ourselves implies valuing it in others, and that our own humanity and dignity is not quite safe, unless the humanity and dignity of our fellow humans is protected as well. 5 - 6 -Second, spatial identity is fundamental to human functioning – The human need for familiar places is common to all because such places represent the accumulated history of our experiences and relationships and are the sites of our hopes and aspirations. 7 -Fried, Marc Research Professor and Director, Institute of Human Sciences, Boston College, “ Grieving for a Lost Home: Psychological Costs of Relocation”, The Urban Condition, 1963. DM 8 -In stressing the importance of places and access to local facilities, we wish only to redress the almost total neglect of spatial dimensions in dealing with human behavior. We certainly do not mean thereby to give too little emphasis to the fundamental importance of interpersonal relationships and social organization in defining the meaning of the area. Nor do we wish to underestimate the significance of cultural orientations and social organization in defining the character and importance of spatial dimensions. However, the crisis of loss of a residential area brings to the fore the importance of the local spatial region and alerts us to the greater generality of spatial conceptions as determinants of behavior. In fact, we might say that a sense of spatial identity is fundamental to human functioning. It represents a phenomenal or ideational integration of important experiences concerning environmental arrangements and contacts in relation to the individual's conception of his own body in space. It is based on spatial memories, spatial imagery, the spatial framework of current activity, and the implicit spatial components of ideals and aspirations. 9 - 10 -Plan 11 -Plan Text: The member states of the European Union will ban the production of commercial land-based nuclear electricity and phase out all nuclear power plants by 2025. 12 -INFORSE, International Network for Sustainable Energy- Europe, “ECOs for a Nuclear-Free Europe.” nd. Acc 17 sep 2016. MO. http://www.inforse.org/europe/nucefree.htm 13 -The phase-out of nuclear power in Europe is an important part in the development of an energy sector without adverse effects or special risks to the environment and to human health. A number of environmental ministers agreed upon this in Sofia in 1995. We call upon all countries to join this effort, and to set a time-frame for the phase-out. ¶Further, we call upon the countries to transform into actions the agreements made in Sofia and Luzern to phase out the most dangerous nuclear power plants. Concrete plans and timetables for the phase-out are absolutely necessary. The plans must be backed up by international cooperation as well as by support from other countries and international organisations like the EU and EBRD. This support should include a safe phase-out as well as the development of alternative supplies and energy conservation to meet the demand. ¶Finally, we call upon all countries and international organisations to stop the planning, funding, and construction of new nuclear power plants immediately. The present preferential treatment of nuclear power plant in the EU and elsewhere should be stopped immediately. 14 -INFORSE 2 clarifies the details of the plan 15 -INFORSE, International Network for Sustainable Energy- Europe, “Sustainable Energy Vision for the EU-27 – Phase out of Fossil and Nuclear Energy Until 2040.” July 2011. Acc 17 sep 2016. MO. http://www.inforse.org/europe/VisionEU27.htm 16 -The European Sustainable Energy Vision includes a vision for the transition of the energy supply and demand for the 27 EU countries to 100 renewable energy together with phase-out of fossil and nuclear energy until 2040. With the vision and the underlying scenario is a reduction of CO2 emissions from energy use of just above 40 until 2020 and just above 70 until 2030 from the 1990 level for all energy use except aviation and international navigation that are not included in the scenario and vision.¶ The new EU-countries already had large reductions since 1990, so the reductions proposed are larger than for the 15 "old" countries from 1990, but smaller from 2000. The scenario is based on technical and economic realistic developments of energy efficiency, renewable energy, interactive ("smart") grids, and social developments. Since the developments are technical and economical feasible, the main question for their realisation is the political will in the 27 EU countries.¶ The INFORSE vision for the EU is based on a scenario made with INFORSE's spreadsheet tool that describes the possible development of energy flows decade by decade, with 5 year steps. The current Sustainable Energy Vision for EU-27 is made in 2010 and is based on earlier versions from 2008, 2007 and 2004. Economic assessments are made for some of the EU countries.¶ The Need to Limit Greenhouse Gas Emissions As we already experience problems of changing climate, it is no longer possible to avoid harmful climate change; but by reducing emissions we can reduce the frequency of larger climate catastrophes that deprives larger populations of their homes, livelihoods, or even lives. The EU has agreed to reduce global warming to 2'C; but that might no even be enough to avoid major negative climate effects. Reductions of the 27 EU countries of 40 in 2020 and 70 in 2030 on the way to phase out fossil fuels and similar sharp reductions in other countries (developing countries emissions should peak until 2017), will give 70-85 certainty that the global average temperature will remain below 2'C.¶ Read more about the needs to limit greenhouse gases. Factor 4 for Energy Efficiency Until 2050, Starting With Ecodesign and then Factor 2 Until 2030 In line with the global vision, the European Vision is based on rapid growth of energy efficiency to reach an average level in 2050 similar to best available technologies today. Most energy consuming equipment will be changed several times until 2050, and if new generations of equipment are made with optimal energy performance, and markets are made to promote the most efficient technology, it will not be a problem to reach today's best available technology, even though the efficiency gains required are very large, - in the order of 4 times, similar to an annual increase of efficiency of over 2 per year from 2010. This will not happen by itself, given that the "natural" technological development has been 1 per year or less. It will require concerted action from all stakeholders involved, but indications are that if the market is large enough for each new generation of efficient equipment, it will be a cost-effective development - the extra equipment costs will be off-set by energy savings. It will also benefit equipment manufacturers that will get better products, also for the world market.¶ The EU countries are already increasing their energy efficiency with an increasing rate compared with the period before 2005, when the EU Ecodesign Directive entered into force. If the currently planned Ecodesign regulation and energy efficiency labelling is passed, and it is followed by national energy efficiency promotion, the energy efficiency can increase 25 until 2020 from 2005. If the current best available technology on the market becomes the norm by 2030, the energy efficiency increase can be 45 for the sector covered by Ecodesign regulation. If the development continues toward the factor four energy efficiency, by 2040 the energy efficiency increase can be 60 or maybe more. ¶ These increase in energy efficiency do not mean that the consumption is reduced with 25, 45 or 60, as the demand for energy services will increase, but substantial energy demand reductions are indeed possible, if ambitious energy efficiency policies are combined with policies to limit the growth of energy services. The sectors covered by Ecodesign is electricity consuming products for household, service sector and to some degree productive sectors. Regulation of energy efficiency in industry, and a higher effective energy price, can lead to the same savings in industry, and even slightly higher savings in industrial heating. For agriculture a slower introduction of energy efficiency is expected.¶ The Challenge of Reducing Heat Consumption For buildings, the situation is different from equipment because buildings often have lifetimes of 100 years or more. Most of the houses to be heated in 2050 are probably already built. In this vision the target heat consumption is 66 kWh/m2 as average in 2040. This will require about a 58 reduction compared with year 2000 EU-27 average, but "only" 53 compared with the 2010 level as the specific heat consumption did reduce considerably in the decade since 2000. (in 2000 the EU average heat consumption in dwellings was 158 kWh/m2 according to the Odysee database, while in 2008 it was only 139 kWh/m2, a reduction of 12. If this is corrected for weather differences between the two years, the reduction was 9. Therefore we expect an 11 reduction 2000 - 2010). If energy-efficiency measures are included in renovations, such a change is possible. The increase in efficiency is estimated to be 2.5/year from 2010, on top of the 11 total 2000-2010. This could be realised by: • raising building-codes to current low-energy housing levels within 1-3 years, • require that all major renovations include a major energy-renovation, • increase energy renovations with financing, advice, campaigns, etc., and • embark on a major program for passive-houses to achieve that the majority of new buildings are built as passive houses, as required before 2020 by the Energy Performance of Building's Directive.¶ Passive houses" are buildings where internal energy sources and passive solar energy supply close to 100 of the demand for space heating, also called "near zero energy houses".¶ Efficient Transport There are very large potentials for energy efficiency in the transport sector. For the first decade the EU agreement to decrease CO2 emissions to 95 g/km in 2020 will increase energy efficiency of new cars with 41 from 2000, where the average emission was 160 g/km. For the car fleet average we therefore expect a 19 reduction 2000 - 2020. From 2020 the vision includes a large-scale shift to electric cars that are 4 times as efficient as cars with combustion engines. After 2030 is also expected a massive shift to hydrogen and hydrogen-electric cars. With the expected transition to electric and hydrogen cars, the energy efficiency increase be 54 until 2030 and 67 by 2040, compared with 2000. The efficiency increase until 2050 will be 75 compared with 2000, so the cars will then be 4 times as efficient. This is made by a combination of the shift to electric vehicles and hydrogen fuel cell vehicles, the more efficient technologies, as planned until 2020, and use of break-energy recovering. The biofuel is only expected to play a minor role, fuelling about 3 of the cars in 2050, as it is an inefficient technology similar to traditional petrol-fuelled cars.¶ For rail and navigation is "only" included increase in efficiency gains of 46, and 32 respectively, but trains will remain more efficient than cars for both personal and freight transport, and they are expected to take over substantial transport from roads in the vision.¶ Will Higher Efficiencies Be Possible? There is not doubt that higher efficiencies will be possible than the factor 2-4 increases included in this vision; but given the current difficulties with realisation of efficiency potentials in many European countries, the efficiency increases proposed in this vision have been limited to the factor 2-4. It is proven that for individual industrial companies and houses, factor 4-10 is possible as increase in efficiency. The challenge is to realise the efficiency on national and international levels.¶ Decoupling Growth The growth of energy services, i.e. heated floor space, transported goods and people, energy consuming production, is expected to reach saturation levels during the 50-year period of the vision. This is in line with the perception that the average Western Europeans have reached a sufficient level of material consumption to satisfy needs, and that material growth should gradually be stopped leaving environmental space for the poorer parts of the world. The new EU countries are expected to have higher material growth in the first decades and then gradually lower growth as they approach EU-average. If the gradual reduction of growth of energy services is to be realised, it will require that the growth of energy services does not follow the expected economic growth, i.e. that the economic growth is decoupled from growth in material consumption such as energy services. Alternatively the economic growth should reduce, as it has in recent years. If economic growth continues with 2.5 per year, GDP will double every 30 year, and will have increased 3.4 times in 50 years. A 2.5 economic growth is a normal growth rate that economists typically expect (or hope) for Western European countries. If this level of economic growth is to continue, the challenge for realisation of the sustainable development described with this vision is to triple the economic value expressed as GDP compared with energy consuming structures and activities. Assumed average EU growth in energy services until 2040:¶ Floor space, household: 30 increase 2000 - 2040 with 11 in the first decade and 5/decade after 2010.¶ Electric appliances in households: higher growth than floor space, i.e. 36 in the period 2000 - 2040 ¶ Industry: no growth in physical production volume, i.e. 0 in growth 2000 - 2050, but substantial growth in electrification. The value of the products are also expected to grow.¶ Service sector: 55 growth in physical activities 2000 - 2040 and in addition increased electrification, so the energy demand level for electrification will increase 64 in the period. Physical activity level increased about 30 2000 - 2010.¶ Personal transport: the vision includes a 19 reduction in private car use from 2000 to 2040 and a doubling in train and tram use as well an increase in bus use of 20. As car use is expected to grow 9 2000 - 2010, the proposed reduction from 2010 to 2040 is 25, which is expected to happen gradually from 2020, when the new public transport is available. This is a vision of a more human and sustainable transport. ¶ Freight transport: the vision includes a 26 reduction in road freight combined with 2.25 times increase in rail freight from 2000 to 2040. Given the expected increase in road freight of 24 from 2000 to 2010, the reduction with 2010 as basis will be about 40. In addition to modal shift, this large reduction is expected by applying a real cost on road transport and thereby avoiding long-distance transport of low-value goods where the transport generates little economic or societal benefits.¶ For the 12 "new" EU countries is expected higher growth than for EU average, mainly for the service sector and in road transport. For both these sectors is expected a 2 - 2.5 times increase above the 2000-level of activities, even more for some countries.¶ The developments of energy services in electricity consumption and transport is below current trends, and require new policies to be realised. For electricity consumption the policies can be to discourage the very inefficient use of direct electric heating, consumer information on total energy demand rather than energy efficiency, and product taxation based on total energy consumption. For transport the measures include, among others, environmental taxes on transport including road pricing and increased petrol taxes, land-use planning to reduce transport, stop of tax breaks to increase transport, stop for subsidizing road construction. See also INFORSE-Europe Energy Sufficiency Page.¶ Renewable Energy Targets The vision follows the target proposed by a large number of NGOs and the European Parliament of 25 renewable energy in 2020. The target for 2030 is 57 and in 2040 above 98.¶ Windpower The growth in windpower have been strong in recent years, with capacities added of about 9000 MW/year in recent years for the EU. This growth is expected to continue with growth of 10000 MW/year until 2020 and then 14,000 MW/year until 2040. The European wind industry has the capacity to develop windpower much faster, but the siting etc. seems to be the limiting factor. Then there will be 460,000 MW of windpower in the EU, including off-shore turbines. This will give a windpower production of of 1150 TWh/year, similar to the potential used in the European Renewable Energy Council's (EREC's) "Rethining2050" report from 2010. The figures correspond well with previous figures from the Windforce'10 report made by European Wind Energy Association, Greenpeace and Forum for Energy and Development and later updated by INFORSE-Europe for Europe. See Windforce-text.¶ Solar Solar heating as well as solar electricity are expected to play large roles. Solar heating can cover at 10-30 of the heating demand, and more if seasonal storage is introduced. The development is expected to continue from current trends. The solar heating development is expected to start with the current large expansion that was 2.7 times in the period 2005 - 2010 and then continue with the same increase rate until 2020, when there will be 360 mill. m2 solar collectors. Then we expect a slightly slower large-scale increase leading to 1 billion m2 in 2030 and about 2 billion m2 by 2040 equal to 4.1 m2/person by 2040. The development after 2010 is considerably stronger than forecasted by EREC. The development after 2030 will require some energy storages of 1-3 months in some (Northern) parts of EU, to reach the expected solar coverage of 1/3 of buildings demand for space heating and hot water.¶ The installed capacity for solar electric generation was 16,000 MW by the end of 2009 and is expected to take off as costs are reaching grid parity in more and more parts of EU. The expectations are for all solar electric capacity (PV and solar thermal electric) the following development: - 150,000 MW in 2020, 180 TWh, - 400,000 MW in 2030, 480 TWh, and - 700,000 MW in 2040, 840 TWh This is in line with forecasts by EREC in the "Rethining2050" report from 2010.¶ Biomass While the biomass growth has been lower than expected for instance in the EU White Paper for Renewable Energy from 1997, use of solid biomass has grown substantially from a level of 2100 PJ in 2000 for the EU-15, and is expected to grow further to 4100 PJ in 2020 in the EU-15, a limit proposed by the German Advisory Council on Global Change in 2003. The limit for the 12 new countries is set to 1800 PJ, following other estimates, and a total for EU of 5900 PJ.¶ In addition to solid biomass is included use of biogas of 750 PJ (210 TWh gas), 8 times the level in 2000 for EU-15 and 125 PJ for the 12 "new" countries, in total 875 PJ. The increase in biogas use is based on an estimation of a total biogas potential in EU-15 of 209 TWh from Biogas in Europe: A General Overview by Jens Bo Holm-Nielsen, MSc. and Teodorita AI Seadi, Sc, Southern Danish University.¶ Energy forests are expected to be used after 2010, in addition to the solid biomass from existing sources, and to reach a level of about 7 of present agricultural land by 2020 and 9 by 2040. This is expected to give a total energy input of 2600 PJ in 2040.¶ In addition to this is included liquid biofuels, to be used in transportation, construction and other sectors. The use of biofuels is expected to reach about 500 PJ. This can be produced with use of about 7 of the agricultural land extensively, i.e. with crops that also produce fodder and without extra demand for agricultural inputs. This will fuel about 3 of transport demand for land transport, but will provide about 10 of the energy input as biofuel vehicles are much less efficient than electric transport. With this ,the 10 renewables in transport target by 2020 will not be reached with biofuels, but with the expected transition to 10 electric and hydrogen vehicles in 2020, the target can be reached in this way.¶ Hydropower For hydropower is expected a 20 growth for EU-15. This is similar to the growth expected in the EU White Paper for Renewable Energy, but it is only expected to be realised by 2020. For the "new" countries is expected about 65 growth in average, including renovation of many smaller hydropower plants that were abandoned 1945-1990. The total potential in the new countries is substantially bigger than that, but many of the proposed large-scale hydropower projects are not included because of their problematic environmental effects.¶ Geothermal Energy and Others The use of geothermal energy for heating and electricity is expected to produce 1400 PJ of energy in 2040 for all EU countries, primarily for heating. This is lower than the potential identified by EREC in its "Rethining2050" report from 2010, because in the INFORSE-Europe vision is only included about 1/3 of the additional long-term potential in "Rethinking2050", as this is somewhat undertain, such as the use of heat from hot dry rock.¶ In addition to geothermal energy that is energy from the earth, comes contributions from heat pumps that collects ambient heat which from the soil, water, air, etc. Heat pumps are are expected to play a role to balance the electricity load, primarily for the EU-15 that have the highest fraction of intermittent electricity production.The heat pumps are expected to collect about 1500 PJ in 2040 including more than 500 PJ for heat pumps in district heating and 600 PJ for heat pumps in dwellings. Heat pumps can give some new flexible electricity demand, as explained below.¶ Other renewables, such as wave-power can also play a large role in the future, but have not been assessed for this vision. They could give a considerable contribution after 2020.¶ Nuclear and Fossil Energy Nuclear energy is expected to be phased out as the current nuclear reactors are stopped because of age, safety problems etc. This is expected to happen mainly 2015-2025. For fossil fuels are expected a gradual phase-out until 2040. A change from coal to gas is expected in the period 2010 - 2020, and a closure of primarily coal fired power plants 2010 - 2030.For space heating is expected a rapid phase out of oil and coal heating followed by a replacement of gas heating with district heating and heat pumps. 17 - 18 -Advantage One is Nuclear Disaster 19 -Toss out the perception of nuclear plants humming away in the middle of empty fields. That exists in North America but not in Europe, where there are no such open spaces. The countryside is dominated by small towns that will inevitably be destroyed by even the smallest nuclear mishap. The population is six times more dense than in the USA. Europe is populated too densely to ensure the safety of its people in case of an accident. It doesn’t need to be Fukushima; it just needs to be inevitable. 20 -Petrangeli, Gianni. Consultant to the IAEA (International Atomic Energy Association) and researcher for nuclear safety for the European Commission; member of the Faculty Council for the Doctorate in Nuclear and Industrial Safety, University of Pisa, Italy Nuclear Safety. Butterworth-Heinemann, 2006. Google Books. MO. Pp5 21 -In Europe, the need to take account of the specific plant features for the evaluation of the acceptability of the site arises from the much higher population density in Europe in comparison with that of the USA (approximately 200 inhabitants per square kilometre and 30 per square kilometre, respectively). It is therefore much more difficult to find low population sites in Europe.¶ The different population densities in Europe and the USA has also brought about differences in accident emergency plans: in the USA, the provision of a complete evacuation of the population within 16 km of the plant in a Few hours is adopted, while in Europe the maximum comparable distance is equal to 10 km. It is indeed difficult to assure the evacuation of population centres with tens, hundreds or thousands of inhabitants. Here too, the countries’ differences in demographic conditions has to be compensated by additional plant features (generally, the use of double containment provided with inter- mediate filtration systems and the use of elevated stacks). 22 -Thousands will suffer from radiation sickness, but many thousands more will lose their homes. People can be evacuated – the major risk of nuclear power isn’t cancer. It’s the disruption of everyday life and loss of community. 23 -Buongiorno, J., et al., “Technical Lessons Learned from the Fukushima-Daichii Accident and Possible Corrective Actions for the Nuclear Industry: An Initial Evaluation”, MIT Center for Advanced Nuclear Energy Systems, May 2011. DM 24 -Permanent and long-term relocation can reduce exposure to radiation to essentially zero levels above natural background. What is gained is the elimination of a tiny additional risk of cancer (maximum risk of 42.2 instead of 42.0 at 20 mSv). This cancer, if it appears, will be diagnosed many years, perhaps decades, in the future. But this gain comes with very significant costs. The costs include loss of home or farm (48,000 homes and over 400 livestock or dairy-farming households are in the evacuation region), loss of privacy (shelters are crowded and residence time is expected to be measured in months before alternative temporary housing will be available), and loss of community (whole towns and villages have been evacuated). Prohibition against consuming contaminated food and water results in no additional internal dose but, for a country already facing food shortages following a devastating earthquake and tsunami, the loss of valuable foodstuffs and interdiction of farmlands are a significant price to pay. 25 -The best data suggests that the possibility of another accident in the next 50 years at least as bad as Fukushima is a coin-toss. 26 -MIT Technology Review, “The Chances of Another Chernobyl Before 2050? 50, Say Safety Specialists’” April 17, 2015. DM 27 -However, the largest accidents appear to follow an entirely different statistical distribution, probably because they occur as a result of set of entirely unforeseen combinations of circumstances.¶ These kinds of large unexpected events are known as dragon king events and particularly difficult to analyse because they follow this different distribution, have unforeseen causes, and are few in number.¶ Nevertheless, Wheatley and co say their data suggests that the nuclear industry remains vulnerable dragon king events. “There is a 50 chance that a Fukushima event (or larger) occurs in the next 50 years,” they say.¶ Fukushima was by far the most expensive accident in history at a cost of $166 billion. That’s 60 per cent of the total cost of all other nuclear accidents added together.¶ The team calculate that a Chernobyl-scale event, the most severe in terms of radiation release, is as likely as not in the next 27 years. And they say a Three Mile Island event in the next 10 years has a probability of 50 percent. 28 -Also, nuclear plants are so complicated that we cannot safeguard against any substantial proportion of possible accidents. Another accident will occur, even if we don’t know when. 29 -Perrow, Charles. Professor Emeritus of Sociology, Yale University “Fukushima and the inevitability of accidents.” Bulletin of the Atomic Scientists 67.6 (2011): 44-52. MO. 30 - This litany of regulatory failures, failures to heed warnings, and commonplace failures is independent of normal accident theory. That theory says that even if we had excellent regulation and everyone played it safe, there would still be accidents in systems that are highly Òinteractively complex,Ó and if the systems are tightly coupled, even small failures will cascade through them. The theory is useful for its emphasis on system complexity and tight coupling; these concepts play a huge role in analyzing the failures of any source in risky systems. In the financial meltdown, for example, the mounting complexity of the overall system allowed fraud and self-dealing to go undetected, and the tight coupling of many systems allowed the failures to cascade. ¶In my work on Ònormal accidents,Ó I have argued that some complex organizationsÑsuch as chemical plants, nuclear power plants, nuclear weapons systems, and, to a more limited extent, air transport networksÑhave so many nonlinear system properties that eventually the unanticipated interaction of multiple failures may create an accident that no designer could have anticipated and no operator can understand.¶ Everything is subject to failureÑ designs, procedures, supplies and equipment, operators, and the environment. The government and businesses know this and design safety devices with multiple redundancies and all kinds of bells and whistles. But nonlinear, unexpected interactions of even small failures can defeat these safety systems. If the system is also tightly coupled, no intervention can prevent a cascade of failures that brings it down.¶ I use the term ÒnormalÓ because these characteristics are built into the systems; there is nothing one can do about them other than to initiate massive system redesigns to reduce interactive complexity and to loosen coupling. Companies and governments can modularize integrated designs and deconcentrate hazardous material. Actually, though, compared with the prosaic cases previously mentioned, normal accidents are rare. (Three Mile Island is the only accident in my list that qualifies.) It is much more common for systems with catastrophic potential to fail because of poor regulation, ignored warnings, production pressures, cost cutting, poor training, and so on. 31 -The mental health effects of nuclear catastrophe are a second disaster. At the very least, the aff plan ameliorates the fear that another disaster will happen. 32 -Worland, Justin. “This May Be the Biggest Health Threat From Fukushima—And It’s Still Ongoing,” Time, March 11, 2016. DM 33 -The 2011 earthquake that struck in Japan killed more than 15,000 people as buildings crumbled and tsunami surged. The meltdown at a local nuclear power plant led to lasting adverse health effects and the relocation of half a million area residents.¶ Now, five years after the incident, the lasting effects of the earthquake continue to threaten tens of thousands of residents of affected communities as survivors battle a mental health crisis of untold proportions.¶ “This is an ongoing disaster in a literal sense—not just rhetorically,” says Irwin Redlener, a professor at Columbia University who studies natural disasters. “The challenges they’re experiencing now are really overwhelming.”¶ The lingering chaos of the disaster represents perhaps the biggest contributor to ongoing mental health issues. Research published this week in the Journal of Epidemiology and Community Health this week shows that two thirds of residents who lived in the evacuation zone have moved more than three times since the disaster, suggesting they have been unable to resettle in a stable location. Nearly 40 of families had been separated by relocation.¶ A lack of trust in government authorities charged with protecting community health has also contributed to mental health problems. The country has continued to source huge portions of its power from nuclear plants and has not backed off plans to increase their use. Many residents live in fear that another disaster may be just around the corner. This overarching environment of suspicion and mistrust of the government carries over to other personal relationships. Some also experience stigma from those who think they may suffer from radiation. Others worry that their food may be affected by radiation.¶ Instability and distrust both contribute to a number of conditions faced by disaster survivors—from post-traumatic stress disorder (PTSD) to depression. The new research attributes a spike in the regional suicide rate to the ongoing consequences of the disaster. The suicide rate in affected regions in Japan ranged from 110 to 138 deaths per 100,000 people in 2014, compared with just below 20 deaths per 100,000 people nationwide.¶ The disaster’s continuing mental health effects can be particularly devastating for children who have been displaced. Many have jumped between schools and have been separated from family members.¶ And the problem only worsens with each move or school swap.¶ “Their ability to be resilient is eroded over time,” says Redlener. “Children are very susceptible to the family dynamic, in addition to whatever trauma they may have experienced themselves.” 34 -Advantage Two is Grid Modernization 35 -Nuclear investments trade off with renewables. Europe proves. 36 -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 37 -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. 38 -Nuclear focus directly trades off with grid modernization efforts. Affirming forces us to invest in newer technologies like renewables and smart grids. 39 -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 40 -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: 41 -Reliance on nuclear leads to overcapacity that is costly pushes us to increase consumption rather than improve efficiency. 42 -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 43 -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 - EntryDate
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... ... @@ -1,36 +1,0 @@ 1 -Framework 2 -Social institutions must remedy systemic violence. 3 -Young 2009 - Young, Iris Marion Prof. Political Science U. Chicago. "Five faces of oppression." Geographic thought: A praxis perspective (2009): 55-71. 4 -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. 5 -Plan Text: The US ought to limit qualified immunity for police officers 6 -Solvency 7 -Civil lawsuits force police departments to improve policies, training, and oversight. 8 -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 9 -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. 10 - 11 -Civil liability is more effective at settling wrongs than criminal liability. 12 -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. 13 -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. 14 -Advantage 1: Racial Discrimination 15 -Qualified immunity harms the groups and communities most victimized by police wrongdoing. Crockford ‘15 16 -Kade Crockford, "Militarization of Police and Racial Justice Gone Wrong: The Eurie Stamps Tragedy", ACLU, Speak Freely, 09/29/2015 17 - 18 -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. 19 -Police brutality is a common experience in communities of color. 20 -Coates 2015 - Ta-Nehisi Coates Writer; Journalist; Educator; McArthur Fellow, Between the World and Me. New York: Spiegel and Grau (2015). p. 9 AT 21 -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. 22 -More than 1,100 people a year are killed by police, and it disproportionately affects people of color. 23 -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 24 -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. 25 -Morality requires a rejection of racism. 26 -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 27 -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. 28 -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. 29 -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 30 -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. 31 - 32 -Advantage 2: LGBTQ+ Discrimination 33 - 34 -Police Brutality and discrimination against the LGBTQ+ community is rampant, Mallory et. Al 35 -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). 36 -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. - EntryDate
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... ... @@ -1,46 +1,0 @@ 1 -Framework 2 -Social institutions must remedy systemic violence. 3 -Young 2009 - Young, Iris Marion Prof. Political Science U. Chicago. "Five faces of oppression." Geographic thought: A praxis perspective (2009): 55-71. 4 -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. 5 -Ideal theory poorly guides choices between imperfect alternatives. 6 -Sen, Amartya. The idea of justice. Harvard University Press, 2011. AG 7 -The problem with the transcendental approach does not arise only from the possible plurality of competing principles that have claims to being relevant to the assessment of justice. Important as the problem of the non-existence of an identifiable perfectly just social arrangement is, a critically important argument in favour of the comparative approach to the practical reason of justice is not just the infeasibility of the transcendental theory, but its redundancy. If a theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient. 8 -To illustrate, if we are trying to choose between a Picasso and a Dali, it is of no help to invoke a diagnosis (even if such a transcendental diagnosis could be made) that the ideal picture in the world is the Mona Lisa. That may be interesting to hear, but it is neither here nor there in the choice between a Dali and a Picasso.6 Indeed, it is not at all necessary to talk about what may be the greatest or most perfect picture in the world, to choose between the two alternatives that we are facing. Nor is it sufficient, or indeed of any particular help, to know that the Mona Lisa is the most perfect picture in the world when the choice is actually between a Dali and a Picasso. 9 -Transcendental theory simply addresses a different question from that of comparative assessment – a question that may be of consider- able intellectual interest, but which is of no direct relevance to the problem of choice that has to be faced. What is needed instead is an agreement, based on public reasoning, on rankings of alternatives that can be realized. The separation between the transcendental and the comparative is quite comprehensive, as will be more fully discussed in Chapter 4 (‘Voice and Social Choice’). As it happens, the comparative approach is central to the analytical discipline of ‘social choice theory’, initiated by the Marquis de Condorcet and other French mathematicians in the eighteenth century, mainly working in Paris.7 The formal discipline of social choice was not much used for a long time, though work continued in the specific sub-area of voting theory. The discipline was revived and established in its present form by Kenneth Arrow in the middle of the twentieth century.8 This approach has become, in recent decades, quite an active field of analytical investigation, exploring ways and means of basing comparative assessments of social alternatives on the values and priorities of the people involved.* Since the literature of social choice theory is typically quite technical and largely mathematical, and since many of the results in the field cannot be established except through fairly extensive mathematical reasoning,† its basic approach has received relatively little attention, especially from philosophers. And yet the approach and its underlying reasoning are quite close to the commonsense understanding of the nature of appropriate social decisions. In the constructive approach I try to present in this work, insights from social choice theory will have a substantial role to play.* 10 -Plan 11 -Text: The United States Federal Government will limit qualified immunity by removing the “clearly established” standard. Wright ‘15 12 -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. 13 -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? 14 - 15 -Two implications: 16 -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. 17 -2. No stare decisis disads – Congress is the actor and it has the authority to change the law. 18 -Solvency 19 -Civil lawsuits force police departments to improve policies, training, and oversight. 20 -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 21 -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. 22 -Two Implications: 23 -1) The AC assumes that most police are indemnified; this only super-charges AC solvency because it bolsters the impetus for institutional reform. 24 -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. 25 -Civil liability is more effective at settling wrongs than criminal liability. Four warrants. 26 -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. 27 -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. 28 - 29 -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. 30 -Advantage 1: Racial Discrimination 31 -Qualified immunity harms the groups and communities most victimized by police wrongdoing. 32 -Crockford ’15 - Kade Crockford, "Militarization of Police and Racial Justice Gone Wrong: The Eurie Stamps Tragedy", ACLU, Speak Freely, 09/29/2015 33 - 34 -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. 35 -Police brutality is a common experience in communities of color. 36 -Coates 2015 - Ta-Nehisi Coates Writer; Journalist; Educator; McArthur Fellow, Between the World and Me. New York: Spiegel and Grau (2015). p. 9 AT 37 -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. 38 -More than 1,100 people a year are killed by police, and it disproportionately affects people of color. 39 -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 40 -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. 41 -Morality requires a rejection of racism. 42 -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 43 -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. 44 -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. 45 -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 46 -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. - EntryDate
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... ... @@ -1,41 +1,0 @@ 1 -Framework 2 -The standard is preserving freedom of expression, which is key to preserving a well-ordered society. 3 -A. Free expression is necessary to support free exchange of ideas. 4 -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. 5 -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 wishes safely can be carried out.165 6 - 7 -B. Free speech protects freedom of thought, wise government, and an engaged democratic citizenry. 8 -Brandeis ’27 - Louis Brandeis Supreme Court Justice, concurring in Whitney v. California, 274 U.S. 357 (1927) 9 -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 10 -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. 11 -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 12 -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. 13 -Contention I: Protecting Dissent 14 -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. 15 -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). 16 -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 17 - 18 -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. 19 -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). 20 -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 21 - 22 -C. This is empirically proven. Campus speech codes are often turned against the marginalized groups they are designed to protect. 23 -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 24 -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 25 -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 26 -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 27 -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 - 30 -Contention II: Free Speech Culture 31 -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. 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/ AT 33 -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. 34 - 35 -B. Historical trends have made students more desirous of protection from danger and demonize ideological opponents. 36 -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/ 37 -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. 38 - 39 -C. The new campus culture fails to teach students intellectual engagement, and instead teaches them to think pathologically. 40 -Lukianoff and Haidt 2 - 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 41 -We have been studying this development for a while now, with rising alarm. (Greg Lukianoff is a constitutional lawyer and the president and CEO of the Foundation for Individual Rights in Education, which defends free speech and academic freedom on campus, and has advocated for students and faculty involved in many of the incidents this article describes; Jonathan Haidt is a social psychologist who studies the American culture wars. The stories of how we each came to this subject can be read here.) The dangers that these trends pose to scholarship and to the quality of American universities are significant; we could write a whole essay detailing them. But in this essay we focus on a different question: What are the effects of this new protectiveness on the students themselves? Does it benefit the people it is supposed to help? What exactly are students learning when they spend four years or more in a community that polices unintentional slights, places warning labels on works of classic literature, and in many other ways conveys the sense that words can be forms of violence that require strict control by campus authorities, who are expected to act as both protectors and prosecutors? ¶ There’s a saying common in education circles: Don’t teach students what to think; teach them how to think. The idea goes back at least as far as Socrates. Today, what we call the Socratic method is a way of teaching that fosters critical thinking, in part by encouraging students to question their own unexamined beliefs, as well as the received wisdom of those around them. Such questioning sometimes leads to discomfort, and even to anger, on the way to understanding. ¶ But vindictive protectiveness teaches students to think in a very different way. It prepares them poorly for professional life, which often demands intellectual engagement with people and ideas one might find uncongenial or wrong. The harm may be more immediate, too. A campus culture devoted to policing speech and punishing speakers is likely to engender patterns of thought that are surprisingly similar to those long identified by cognitive behavioral therapists as causes of depression and anxiety. The new protectiveness may be teaching students to think pathologically. - EntryDate
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... ... @@ -1,45 +1,0 @@ 1 -Framework 2 -The standard is preserving freedom of expression, which is key to preserving a well-ordered society. 3 -A. Free expression is necessary to support free exchange of ideas. 4 -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. 5 -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 6 -wishes safely can be carried out.165 7 -B. Free speech protects freedom of thought, wise government, and an engaged democratic citizenry. 8 -Brandeis ’27 - Louis Brandeis Supreme Court Justice, concurring in Whitney v. California, 274 U.S. 357 (1927) 9 -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. 10 - 11 -Contention I: Protecting Dissent 12 -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. 13 -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). 14 -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 15 - 16 -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. 17 -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). 18 -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 19 -C. This is empirically proven. Campus speech codes are often turned against the marginalized groups they are designed to protect. 20 -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 21 -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 22 - 23 - 24 -Contention II: Free Speech Culture 25 -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. 26 -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 27 -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. 28 -B. Historical trends have made students more desirous of protection from danger and demonize ideological opponents. 29 -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/ 30 -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. 31 -C. The new campus culture fails to teach students intellectual engagement, and instead teaches them to think pathologically. 32 -Lukianoff and Haidt 2 - 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 33 -We have been studying this development for a while now, with rising alarm. (Greg Lukianoff is a constitutional lawyer and the president and CEO of the Foundation for Individual Rights in Education, which defends free speech and academic freedom on campus, and has advocated for students and faculty involved in many of the incidents this article describes; Jonathan Haidt is a social psychologist who studies the American culture wars. The stories of how we each came to this subject can be read here.) The dangers that these trends pose to scholarship and to the quality of American universities are significant; we could write a whole essay detailing them. But in this essay we focus on a different question: What are the effects of this new protectiveness on the students themselves? Does it benefit the people it is supposed to help? What exactly are students learning when they spend four years or more in a community that polices unintentional slights, places warning labels on works of classic literature, and in many other ways conveys the sense that words can be forms of violence that require strict control by campus authorities, who are expected to act as both protectors and prosecutors? ¶ There’s a saying common in education circles: Don’t teach students what to think; teach them how to think. The idea goes back at least as far as Socrates. Today, what we call the Socratic method is a way of teaching that fosters critical thinking, in part by encouraging students to question their own unexamined beliefs, as well as the received wisdom of those around them. Such questioning sometimes leads to discomfort, and even to anger, on the way to understanding. ¶ But vindictive protectiveness teaches students to think in a very different way. It prepares them poorly for professional life, which often demands intellectual engagement with people and ideas one might find uncongenial or wrong. The harm may be more immediate, too. A campus culture devoted to policing speech and punishing speakers is likely to engender patterns of thought that are surprisingly similar to those long identified by cognitive behavioral therapists as causes of depression and anxiety. The new protectiveness may be teaching students to think pathologically. 34 -D. Regardless of their enforcement, speech codes create a chilling effect and miseducate students about pluralistic democracy. 35 -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 36 -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. 37 - 38 -E. Free speech values on campus are key to free speech values in society. 39 -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). 40 -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. 41 - 42 -Underview 43 -Colleges can craft constitutionally permissible hate speech policies using existing exceptions to 1st Amendment protections or precedents in tort law. 44 -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 45 -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. - EntryDate
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... ... @@ -1,52 +1,0 @@ 1 -The standard is maintaining pluralism. 2 -Pluralism is an established fact of democratic society. It is impossible to eradicate diversity of opinion and normatively reprehensible to try. Rawls 2001: 3 -Rawls ’01 - John Rawls Prof. Emeritus, Harvard U. decd., Justice as Fairness: A Restatement. Cambridge: Harvard University Press (2001). p.33-35 AT 4 -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. 5 -Contention 1: Democratic Citizenship 6 -Sub-Point A: Harms 7 -The world is experiencing a crisis of democratic legitimacy driven by a lack of support among the young for core democratic norms and institutions. 8 -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). 9 -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 10 - 11 -There is a disturbing trend of students failing to realize the value of basic democratic norms. 12 -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 13 -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. 14 - 15 -Millenials have grown up in an increasingly intolerant society, we have to act now. 16 -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/ 17 -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. 18 - 19 -Sub-Point B: Democratic Citizenship 20 -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. 21 -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). 22 -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. 23 - 24 -In a world of hyperpartisanship, universities need to take the lead in fostering debate and discussion— this supercharges the spillover effect. 25 -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 26 -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. 27 - 28 -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. 29 -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). 30 -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. 31 - 32 -Contention 2: Protecting Dissent 33 -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. 34 -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). 35 -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 36 - 37 -Universities suppress controversial speech to keep admissions numbers high and donations pouring in. 38 -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. 39 -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.” 40 - 41 -The exercise of government power is unpredictable. Progressives are most likely to be censored if the free speech protections are weakened. 42 -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). 43 -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 44 - 45 -This is empirically proven. Campus speech codes are often turned against the marginalized groups they are designed to protect. 46 -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 47 -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 48 -Underview 49 -Hate Speech and Harassment are not Constitutionally Protected 50 -Colleges can craft constitutionally permissible hate speech policies using existing exceptions to 1st Amendment protections or precedents in tort law. 51 -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 52 -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. - EntryDate
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- EntryDate
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... ... @@ -1,1 +1,0 @@ 1 -2017-02-04 17:09:06.0 - Judge
-
... ... @@ -1,1 +1,0 @@ 1 -Idk - Opponent
-
... ... @@ -1,1 +1,0 @@ 1 -Eagle - Round
-
... ... @@ -1,1 +1,0 @@ 1 -1 - Tournament
-
... ... @@ -1,1 +1,0 @@ 1 -Golden Desert
- Caselist.RoundClass[0]
-
- Cites
-
... ... @@ -1,0 +1,1 @@ 1 +0 - EntryDate
-
... ... @@ -1,0 +1,1 @@ 1 +2016-09-10 18:34:10.0 - Judge
-
... ... @@ -1,0 +1,1 @@ 1 +Arjun Tambe - Opponent
-
... ... @@ -1,0 +1,1 @@ 1 +San Marino - Round
-
... ... @@ -1,0 +1,1 @@ 1 +1 - Tournament
-
... ... @@ -1,0 +1,1 @@ 1 +Loyola