Summary

• Objects (1 modified, 1 added, 0 removed)
  • Caselist.RoundClass[31]
  • Caselist.CitesClass[51]

Details

Caselist.RoundClass[31]

EntryDate

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1		-2016-12-18 19:07:42.31
	1	+2016-12-18 19:07:42.0

Caselist.CitesClass[51]

Cites

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	1	+Hate speech is protected by the constitution.
	2	+Volokh 15. Volokh, Eugene teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy, “No, there’s no “hate speech” exception to the First Amendment”, Washington Post, 08/07/15. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/?utm_term=.0285ca6aa92b//AD
	3	+I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?” But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans. To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. (And, notwithstanding CNN anchor Chris Cuomo’s Tweet that “hate speech is excluded from protection,” and his later claims that by “hate speech” he means “fighting words,” the fighting words exception is not generally labeled a “hate speech” exception, and isn’t coextensive with any established definition of “hate speech” that I know of.) The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend. The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a “group libel” law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true, and were said with “good motives” and for “justifiable ends.” But this too was treated by the Court as just a special case of a broader First Amendment exception — the one for libel generally. And Beauharnais is widely understood to no longer be good law, given the Court’s restrictions on the libel exception. See New York Times Co. v. Sullivan (1964) (rejecting the view that libel is categorically unprotected, and holding that the libel exception requires a showing that the libelous accusations be “of and concerning” a particular person); Garrison v. Louisiana (1964) (generally rejecting the view that a defense of truth can be limited to speech that is said for “good motives” and for “justifiable ends”); Philadelphia Newspapers, Inc. v. Hepps (1986) (generally rejecting the view that the burden of proving truth can be placed on the defendant); R.A.V. v. City of St. Paul (1992) (holding that singling bigoted speech is unconstitutional, even when that speech fits within a First Amendment exception); Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008) (concluding that Beauharnais is no longer good law); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989) (likewise); Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (likewise); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973) (likewise); Erwin Chemerinsky, Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe, Constitutional Law, §12-17, at 926; Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. and Mary L. Rev. 211, 219 (1991); Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988). Finally, “hostile environment harassment law” has sometimes been read as applying civil liability — or administrative discipline by universities — to allegedly bigoted speech in workplaces, universities, and places of public accommodation. There is a hot debate on whether those restrictions are indeed constitutional; they have generally been held unconstitutional when applied to universities, but decisions are mixed as to civil liability based on speech that creates hostile environments in workplaces (see the pages linked to at this site for more information on the subject). But even when those restrictions have been upheld, they have been justified precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society at large, but only apply to particular contexts, such as workplaces. None of them represent a “hate speech” exception, nor have they been defined in terms of “hate speech.” For this very reason, “hate speech” also doesn’t have any fixed legal meaning under U.S. law. U.S. law has just never had occasion to define “hate speech” — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category. Of course, one can certainly argue that First Amendment law should be changed to allow bans on hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond with attacks on Americans or blasphemy or flag burning or anything else). Perhaps some statements of the “This isn’t free speech, it’s hate speech” variety are deliberate attempts to call for such an exception, though my sense is that they are usually (incorrect) claims that the exception already exists. I think no such exception should be recognized, but of course, like all questions about what the law ought to be, this is a matter that can be debated. Indeed, people have a First Amendment right to call for speech restrictions, just as they have a First Amendment right to call for gun bans or bans on Islam or government-imposed race discrimination or anything else that current constitutional law forbids. Constitutional law is no more set in stone than any other law. But those who want to make such arguments should acknowledge that they are calling for a change in First Amendment law, and should explain just what that change would be, so people can thoughtfully evaluate it. Calls for a new First Amendment exception for “hate speech” shouldn’t just rely on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected, and how judges, juries, and prosecutors are supposed to distinguish the two. Saying “this isn’t free speech, it’s hate speech” doesn’t, I think, suffice.
	4	+Academic exclusion in hostile campuses leads to lower graduation rates, perpetuating exclusion.
	5	+Perry 15. Andre M. Perry, 11-11-2015, "Campus racism makes minority students likelier to drop out of college. Mizzou students had to act.," https://www.washingtonpost.com/posteverything/wp/2015/11/11/campus-racism-makes-minority-students-likelier-to-drop-out-of-college/?tid=a_inl//AD
	6	+By now you know the story: Three days ago, University of Missouri footballers offered administrators an ultimatum: University system President Tim Wolfe had to go or the team wouldn’t play. Monday morning, Wolfe resigned. Credit players and protesters, led by hunger-striking grad student Jonathan Butler, for drawing attention to Wolfe’s failure to address campus racism. But beyond applauding the activism of students, it’s important to understand what’s at stake at Missouri and other campuses — like Yale University, where students at the Silliman residential college have taken on their live-in faculty advisers over competing views about the impact of racially insensitive Halloween costumes — is college survival itself: In hostile environments, students of color graduate at lower rates, jeopardizing not only their academic careers but also future success. In one sense, given the controversies at Mizzou — where a hostile campus climate serves as a mechanism by which students of color remain outsiders — the students didn’t have a choice. It would be illogical, and self-defeating, if they didn’t use the power they had at their disposal. Campus racial climate has been linked to academic success. And research has long shown that academic preparedness is only one of many factors that determine why students do or don’t graduate. The psychological attitudes between and among groups, as well as intergroup relations on campuses, influences how well students of color perform and whether they stay on track toward graduation. Graduation rates lag when schools don’t provide an environment that fosters the scholastic pursuits of minority students, particularly black men. Researcher Sylvia Hurtado explains that “Just as a campus that embraces diversity provides substantial positive benefits, a hostile or discriminatory climate has substantial negative consequences.” Her research found that “Students who reported negative or hostile encounters with members of other racial groups scored lower on the majority of outcomes.” A study of students at the University of Washington found that black students there were the only campus group to suffer a clear statistical GPA disadvantage from a nasty campus climate: “Results indicate that campus climate is significantly related to academic achievement of African American students, as represented by GPA, accounting for about 11 percent of the variance.” That means black students facing adverse conditions are likelier to leave college early — and would, presumably, be likelier to stay in what they felt to be a safe space. In “Interactional Diversity and the Role of a Supportive Racial Climate” the University of Maryland’s Leah Kendra Cox found much the same thing: “In unhealthy climates, students — both majority and minority — are less likely to thrive academically or socially.” She found that a supportive racial climate had more impact than any other factor on the strength of diversity on campus. Perhaps not coincidentally, a Gallup survey last month illustrated that students at Historically Black Colleges and Universities, or HBCUs — where the climate, by design, nurtures students of color — were far more likely to “strongly agree that their colleges prepared them for life after graduation (55) than black graduates of other institutions (29).” In that context, consider the reports of what’s taken place in the Mizzou community. In September, Missouri Students Association President Payton Head, who is black, took to Facebook to report being called the n-word by a driver in a passing car as he walked down a street near campus. In early October, the Legion of Black Collegians tweeted that intoxicated white students had shouted the n-word at them during a campus protest. Later that month, tensions flared when someone smeared feces in the form a swastika in a campus bathroom — creating the kind of climate that alienates and marginalizes minority students, who have just as much right to pursue their education on the Missouri campus, free from harassment, as anyone else. Students still remember the 2010 incident in which two Missouri students were suspended for dropping cotton balls in front of the campus’ Black Culture Center. Wolfe’s inaction, in the face of repeated demands to better address students’ frustration with the charged campus environment, precipitated his ouster. Though he later apologized, many cite his failure to engage with students — remaining cloistered in his car — when approached by the campus group ConcernedStudent1950 at a homecoming parade, as one of the last straws that ended his administration. And while commentators like Rush Limbaugh say Wolfe resigned for “committing the crime of being a white male,” their argument, beyond the hyperbole, is the wrong way to evaluate the relationship of the university to its students. Wolfe’s job was to use the resources at his disposal to build a campus community where all students feel they can pursue their academic careers in an environment where they’re respected and taken seriously. But as Butler told The Post: When you localize it to the hunger strike it really is about the environment that is on campus. We have reactionary, negligent individuals on all levels at the university level on our campus and at the university system level, and so their job descriptions explicitly say that they’re supposed to provide a safe and inclusive environment for all students … but when we have issues of sexual assault, when we have issues of racism, when we have issues of homophobia, the campus climate continues to deteriorate because we don’t have strong leadership, willing to actually make change. So, for me, I’m fighting for a better tomorrow. As much as the experiences on campus have not been that great for me — I had people call me the n-word, I had someone write the n-word on the a door in my residence hall — for me it really is about a call for justice. I’m fighting for the black community on campus, because justice is worth fighting for. And justice is worth starving for. So is education. The U.S. Department of Education found markedly lower graduation rates for blacks and Latino men (33.2 percent and 44.8 percent, respectively, graduate from college within six years) compared with their white and Asian peers (57.1 percent and 64.2 percent, respectively). These disparities have been depressingly constant in recent years. One factor contributing to these disparities is that universities frequently place a premium on meeting the (short-term) needs of black athletes in revenue generating sports while paying lip service to the needs of other students of color. From the disciplines faculty teach in to the traditions they uphold, predominantly white institutions haven’t fully dealt with the changing demographics of collegians. For many students, especially first-generation collegians, these institutions often place the burden on students to adapt to an unwelcoming environment. But the Missouri case illustrates the imperative for colleges to transform what they are and who they serve if they are to fulfill their mission of addressing societal problems, training the workforce and educating the public. And black student-athletes, who are overrepresented in the major-revenue sports — football and basketball — may be uniquely empowered to move university leaders who, in the case of the University of Missouri, at least, didn’t demonstrate they were otherwise compelled by the data. If colleges can prioritize the needs of students of color in their athletic programs, they also can prioritize the development of scientists, historians and teachers of color. In order to do this, postsecondary institutions must change at a structural level. One approach would be to transition their merit-based scholarships into need- or place-based scholarships. First-generation collegians should have access to living-learning communities in which dormitories provide wrap-around supports. Colleges must attract and retain black and brown faculty at much higher levels. Faculty must embrace their role as counselors, not just instructors or researchers. Academic support for first-generation collegians shouldn’t be treated as remediation. Finally, faculty and administrators should be held accountable for graduation rates. Success isn’t just on students’ shoulders.
	7	+This perpetuates generational cycles of antiblackness – it’s the reason demographic poverty trends exist along lines of race.

EntryDate

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	1	+2016-12-18 19:07:44.579

Judge

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	1	+Dino De La O, Martin Sigalow

Opponent

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	1	+North Crowley Logan Reed

ParentRound

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	1	+31

Round

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	1	+1

Team

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	1	+Westwood Mandavilli Neg

Title

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	1	+JANFEB - DA - Hate Speech

Tournament

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	1	+Strake Jesuit Round Robin