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-Hate Speech PIC |
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-Counterplan text: aff actors ought to expand the fighting words doctrine to include racist speech. |
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-Susan M. Finegan Boston College Third World Law Journal Volume 11 | Issue 1 Article 5 1-1-1991 Anti-Harrassment Disciplinary Policies: A Violation of First Amendment Rights on the Public University Campus? ED |
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-Other commentators have also tried to reconcile these two commitments, free speech and equality, with respect to racist speech. 197 As Professor Charles Lawrence argued, "to engage in a debate about the first amendment and racist speech without a full understanding of the nature and extent of the harm of racist speech risks making the first amendment an instrument of domination rather than a vehicle of liberation."198 He speaks poignantly about the difference between offensive, impolite language as found in Cohen and the harms caused by racist slurs: psychic injury, shame, vulnerability, and fear. 199 He would solve this balancing test by expanding the "fighting words" exception to include racist speech.20o He differentiates the traditional "fighting words" doctrine requirement of an uncontrollable violent reaction, with the typical response by the victim of a racial epithet, flight or silence. 201 He argues that this response is just as severe as a violent reaction.202 Victims are left speechless, powerless, and fearful of physical abuse.203 Anti-Semitic, racist, or sexist verbal abuse causes actual physical symptoms, temporarily disabling and muting the victim.204 Regulations that curtail such speech are therefore "clearly within the spirit, if not the letter, of existing first amendment doctrine."205 |
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-Independently turns case because hate speech silences victims leaving them effectively speechless. |
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-Campus regulations of hate speech cause spillover that reduce racism. |
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-Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 NW.U.L. Rev. 343, 371-75 (1991), https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2104287 Charles Inglis Thomson Professor of Law, University of Colorado School of Law. J.D. 1974, U-C Berkeley School of Law (Boalt Hall). |
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-Unlike with racism's etiology, there is relative agreement on the part of social scientists on how to control its expression. Much prejudice is situational-individuals express it because the environment encourages or tolerates it.264 The attitude may be relatively constant, but most of us express it selectively-at times we hold it in check, at other times we feel freer to express it in action. 265 The main inhibiter of prejudice is the certainty that it will be remarked and punished. This "confrontation theory" 266 for controlling racism holds that most individuals are ambivalent in matters of race. We realize that the national values-those enshrined in the "American Creed"-call for fair and respectful treatment of all. But the fair-mindedness of our public norms is not always matched by our private behavior. 267 During moments of intimacy we feel much freer to tell or laugh at an ethnic joke, to make a racist or sexist remark. 268 Rules, formalities, and other environmental reminders put us on notice that the occasion requires the higher formal values of our culture. The existence of rules forbidding certain types of racist acts causes us not to be inclined to carry them out. Moreover, threat of public notice and disapproval operates as a reinforcer-the potential racist refrains from acting, out of fear of notice and sanction. The confrontation theory is probably today the majority view among social scientists on how to control racism. Most who subscribe to this approach hold that laws and rules play a vital role in controlling racism. According to Allport, they "create a public conscience and a standard for expected behavior that check overt signs of prejudice. ' 269 Nor is the change merely cosmetic. In time, rules are internalized, and the impulse to engage in racist behavior weakens. 270 The current understanding of racial prejudice thus lends some support to campus antiracism rules. The mere existence of such rules will often cause members of the campus community to behave in a more egalitarian way, particularly when others may be watching. Even in private settings, some people will refrain from acting because the law has set an example. Those whose prejudice is associated with authoritarianism will do so because the rules represent society's legitimate voice. Further, social science casts doubt on both the "hydraulic" theory of racism, according to which controlling racism in one arena will simply cause it to crop up somewhere else,271 and the theory that racist remarks are relatively harmless. A large body of literature shows that incessant racial categorization and treatment seriously impair the prospects and development of persons of minority race,272 deepen rigidity and set the stage for even more serious transgressions on the part of persons so disposed. 273 |