Tournament: Harvard-Westlake Debates | Round: 1 | Opponent: Carmel Valley Independent RA | Judge: Michele Bauer-Bean
MAN – Novice AC (With Updated Advantages)

Framework
I value morality – 

In the context of governments like the United States, morality must be based on citizens having the ability to consent to political authority. Otherwise that authority is coercive and illegitimate. Benhabib 94

Seyla Benhabib 94 Eugene Mayer Professor of Political Science and Philosophy at Yale University, and director of the program in Ethics, Politics, and Economics, and a well-known contemporary philosopher, “Deliberative Rationality and Models of Democratic Legitimacy”, Constellations Volume I, No/, 1994, Published by Blackwell Publishers

I define democratic legitimacy as the belief that the major institutions of a society and the decisions reached by them on behalf of the public are worthy of being obeyed and granted normative recognition. The basis of legitimacy in democratic institutions is to be traced back to the presumption that the instances which claim obligatory power for themselves do so because their decisions represent an impartial standpoint said to be equally in the interests of all. This presumption can only be fulfilled if such decisions are in principle open to appropriate public processes of deliberation.¶ The discourse model of ethics and politics is precisely such a model of practical rationality and deliberative legitimacy. The basic idea behind this model is that only those norms, i.e., general rules of action and institutional arrangements, can be said to be valid which would be agreed to by all those affected by their consequences, if such agreement were reached as a consequence of a process of deliberation which had the following features: a. participation in such deliberation is governed by the norms of equality and symmetry; all have the same chances to initiate speech acts, to question, to interrogate, and to open debate; b. all have the right to question the assigned topics of conversation; c. all have the right to initiate reflexive arguments about the very rules of the discourse procedure and the way in which they are applied or carried out. There are no prima facie rules limiting the agenda of the conversation, nor the identity of the participants, as long as each excluded person or group can justifiably show that they are relevantly affected by the proposed norm under question. In certain circumstances this would mean that citizens of a democratic community would have to enter into a practical discourse with non-citizens who may be residing in their countries, at their borders, or in neighboring communities if there are matters which affect them all. Ecology and environmental issues in general are a perfect example of such instances when the boundaries of discourses keep expanding because the consequences of our actions expand and impact increasingly more people.¶ The discourse model of ethics and politics formulates the most general principles and moral intuitions behind the validity claims of a deliberative model of democracy.15 But the procedural specifics of those special¶ argumentation situations called "practical discourses" are not automatically transferrable to a macro-institutional level nor is it necessary that they should be so transferrable. A theory of democracy, as opposed to a general moral theory, would have to be concerned with the question of institutional specifications about practical feasibility. Nonetheless, the procedural constraints of the discourse model can act as test cases for critically evaluating the criteria of membership, the rules for agenda setting, and for the structuring of public discussions within and among institutions.¶ According to the deliberative model, procedures of deliberation generate legitimacy as well as assuring some degree of practical rationality. What are then the claims to practical rationality of deliberative processes? Deliberative processes are essential to the rationality of collective decision- making processes for three reasons. First, as Bernard Manin has observed in an excellent article "On Legitimacy and Deliberation," deliberative processes are also processes which impart information.17 New information is imparted because in the first place no single individual can anticipate and foresee all the variety of perspectives through which matters of ethics and politics would be perceived by different individuals; in the second place, no single individual can possess all the information deemed relevant to a certain decision affecting all.18 Deliberation is a procedure for being informed.

Most importantly, this requires the right to speak freely. Only by securing the right to free speech can the government be democratic. Eberle, Law @ Roger Williams, 94
(Wake Forest LR, Winter)
The Court's decision in R.A.V. reaffirms the preeminence of free speech in our constitutional value structure. n62 Theoretically, free speech is intrinsically valuable as a chief means by which we develop our faculties and control our destinies. n63 Free speech is also of instrumental value in facilitating other worthy ends such as democratic or personal self-government, n64 public and private decisionmaking, n65 and the advancement of knowledge and truth. n66 Ultimately, the value of free speech rests upon a complex set of justifications, as compared to reliance on any single foundation. n67 The majority of the Court in R.A.V. preferred a nonconsequentialist view, finding that speech is valuable as an end itself, independent of any consequences that it might produce. In this view, free speech is an essential part of a just and free society that treats all people as responsible moral agents. Accordingly, people are entrusted with the responsibility of making judgments about the use or abuse of speech. n68 From this vantage point, the majority saw a certain moral equivalency in all speech. Even hate speech merits protection under the First Amendment, because all speech has intrinsic value. This is so because all speech, even hate speech, is a communication to the world, and therefore implicates the speaker's autonomy or self-realization. Additionally, any information might be valuable to a listener who can then decide its importance or how best to use it. Accordingly, any suspicion or evidence of governmental censorship must be vigilantly investigated.

And, we should guarantee a marketplace of ideas, which supersedes other utilitarian grounds to restrict rights. The right to speak out is valuable in itself. Dwyer 01
Susan Dwyer, philosophy at University of Maryland, 2001 (http://www.umbc.edu/philosophy/dwyer/papers/freespeech.html)
Direct Nonconsequentialism Let us return to the central topic: free speech. From the perspective just sketched, the value of a marketplace of ideas – that notion so central to the consequentialist justification of free speech – lies not so much in its long-term all-things-considered good consequences (the avoidance of dogmatism, democracy, truth, etc.) Rather, free speech is seen as a necessary condition for the realization of any human goods. Constraints on inquiry and expression are constraints on humanity itself. Echoing this thought, Nagel (1995) writes: That the expression of what one thinks and feels should be overwhelmingly one's own business, subject to restriction only when clearly necessary to prevent serious harm distinct from the expression itself, is a condition of being an independent thinking being. It is a form of moral recognition that you have a mind of your own: even if you never want to say anything to which others would object, the idea that they could stop you if they did object is in itself a violation of your integrity (96). A simple yet powerful fact both explains why speech is valuable in and of itself and justifies its stringent protection: when speech is threatened, we are threatened. Direct nonconsequentialism stands in stark contrast to consequentialist approaches which, as we have seen, make the value of speech contingent on its effects. And unlike indirect nonconsequentialism, it makes our status as language users, not our autonomy, the ground for limiting the state's attempts to interfere with our liberty. To repeat: direct nonconsequentialism asserts that speech is valuable because linguistic capacities are the expression of the essence of creatures (us) to whom we attribute the highest moral status. The way in which the direct nonconsequentialist makes explicit what is special about speech helps to make sense of a commonly experienced wariness regarding restrictions on speech we hate. We worry equally when the state seeks to prohibit the speech of sexists or Flat-Earthers. The consequentialist thinks this reaction is explained by attributing to us the belief that any state restriction of speech is the thin end of a wedge: we are discomforted by the thought of the muzzled sexist or Flat-Earther because we think our speech may be next. This may well be the right account of human psychology in these matters. But it is hardly an explanation of the prima facie wrongness of restrictions on lunatics' and sexists’ speech. Our discomfort is a moral discomfort. In bringing out the idea that speech is the expression of our essence, the direct nonconsequentialist is able to capture the true nature of our reaction to state restrictions on others' speech we do not particularly care for. Direct nonconsequentialism also gives substance to a powerful idea that some influential critics – notably, Catharine Mackinnon (1987) – find hopelessly abstract. This is the thought that “every time you strengthen free speech in one place, you strengthen it everywhere (164).” And seeing how direct nonconsequentialism does so will help illustrate some of the practical implications of this strategy for justifying free speech. Proponents of legislation designed to restrict or prohibit problematic speech and courts that rule on the constitutionality of such legislation, often reason in terms of how free speech interests are to be balanced with other interests. For example, proponents of speech codes argue that racist speech harms minorities’ interests in social and political equality; and in the United States, the constitutionality of restrictions on ‘fighting words’ is defended in light of the state’s interests in maintaining law and order. These arguments imply that the expressive rights of individual racists and troublemakers may sometimes be infringed in order to promote the good of some collective. But as the history of free speech debates reveal, once we admit that collective interests can trump individual rights, it is extremely difficult consistently to maintain the belief that a right to free speech imposes severe limits on what the state may do. The direct nonconsequentialist justification of free speech avoids this particular difficulty. Recall, we are working within the context of constitutional provisions – that is, we are thinking about rationales for stringent protections of speech, where these are understood as mechanisms for keeping the government out of some aspect of our lives. In this sense, such provisions express rights had by individuals against the state. But the direct nonconsequentialist’s account of the basis of these rights suggests that it is a mistake to think of them as radically individualistic. True, each of us has a right to free speech, but we have that right in virtue of our membership in a collective – the species H. sapiens – where every member has the same right for the same reason. Thus, in stressing that a universal feature of the species – language mastery – grounds protections on speech, the direct nonconsequentialist avoids individualizing the right to free speech in a way that makes it perpetually vulnerable to the assertion of some collective good. If we think of a person’s right to free speech as protecting just one aspect of his liberty among others, we run the risk of obscuring what is morally relevant about speech. The hatemonger and the pornographer each have a right to free speech, but this is not to be understood in terms of their being free to act on contingent desires they have. My occurrent desire to eat ice-cream holds no weight in the big scheme of things; even I would concede that it is permissible for the state to thwart my satisfying this desire, if doing so meant promoting some very important collective good. But speech is different. It is worthy of protection not because people want to say certain things, but (to repeat) because speech expresses our very nature. What someone wants to say is neither here nor there. Thus, in decoupling the value of free speech from individual desires, direct nonconsequentialism gives content to the idea that when we strengthen (protect) free speech in one place, we strengthen (protect) it everywhere.

Therefore, my value criterion is respecting democratic deliberation. This means that the judge should vote for which side best promotes discussion and dialogue at universities. 

Our central thesis for this debate is that universities are a place for learning and that restrictions on free speech limit student dissent and make it an undemocratic environment. Only by allowing free and open discussion can democracy work.

Advantage 1 – Free press
My first contention is about freedom of the press – right now restrictions on free speech are loading up on college campuses. This is a damaging precedent for student newspapers. Schuman 16
(Rebecca, http://www.slate.com/articles/life/education/2016/12/student_journalists_are_under_threat.html)
Well, here’s some great news to cheer you up: The American student press is under siege! Apparently, we’ve been too busy blowing gaskets over professor watch lists and “safe spaces” to recognize the actual biggest threat to free speech on college campuses today. According to a new report by the American Association of University Professors, in conjunction with three other nonpartisan free-speech advocacy organizations, a disquieting trend of administrative censorship of student-run media has been spreading quietly across the country—quietly, of course, because according to the report, those censorship efforts have so far been successful. The report finds that recent headlines out of Mount St. Mary’s University, for example, may be “just the tip of a much larger iceberg.” Indeed, “it has become disturbingly routine for student journalists and their advisers to experience overt hostility that threatens their ability to inform the campus community and, in some instances, imperils their careers or the survival of their publications.” The report chronicles more than 20 previously unreported cases of media advisers “suffering some degree of administrative pressure to control, edit, or censor student journalistic content.” Furthermore, this pressure came “from every segment of higher education and from every institutional type: public and private, four-year and two-year, religious and secular.” It gets worse. In many of the cases in the report, administration officials “threatened retaliation against students and advisers not only for coverage critical of the administration but also for otherwise frivolous coverage that the administrators believed placed the institution in an unflattering light,” including an innocuous listicle of the best places to hook up on campus. In many cases, the student publications were subject to prior review from either an adviser who reported directly to the administration or the administration itself. Prior review means getting what’s in your newspaper signed off on by someone up top before it can be published. It is—to use the parlance of my years of professional journalistic training that began with my time as features editor of the Vassar College Miscellany News in the mid-’90s—absolute bullshit. (At public universities, it’s also illegal.) First, and most obviously, this is because a free student press is a hallmark of the American higher education system, and any threat to that freedom is on its face worrying. But there’s also this: The last thing we need right now, in the creeping shadow of American authoritarianism, is an entire generation of fledgling journalists who’ve come up thinking censorship is acceptable.

This justifies wide spread censorship in a diverse array of cases It’s not just about the press – it’s about the way the administration justifies a choke hold on student activities.  Lukianoff 05
(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)
Commentators from across the political spectrum, while often disagreeing on the source, the scale, and the cause of the chilling of free speech on campus, have described the current campus environment as one where the “marketplace of ideas” is under siege.13 Whether in the name of “ tolerance,” *17 risk management, or merely peace and quiet, hundreds (if not thousands) of universities have enacted policies and engaged in practices hostile to free and open discourse over the past few decades.14 Starting in the 1980s, colleges enacted “speech codes” under a variety of creative legal theories. Despite numerous decisions ruling these codes unconstitutional15 and this Court's decision in R.A. E v. City of St. Paul, 505 U.S. 377 (1992), which indicated that viewpoint-based speech codes would be unconstitutional, the number of university speech codes actually increased through the 1990s, see Jon Gould, The Precedent that Wasn't, 35 Law and Soc'y Rev. 345 (2001). Over the past twenty years, numerous books have been written alleging an illiberal, intolerant, and/or partisan atmosphere on campus16 in which dissenting viewpoints and unpopular groups are repressed through a variety of measures. More recently, universities have adopted highly restrictive, and sometimes absurd “speech *18 zone” policies restricting speech from all but small comers of the university.17 Thus far, the law has served to protect the collegiate marketplace of ideas from overreaching administrations, requiring policies and practices in keeping with the First Amendment and academic freedom. For example, in Rosenberger, this Court granted religious student groups equal access to student fee funding. In Bait v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003), a federal court in Pennsylvania ruled Shippensburg University's speech code was unconstitutionally overbroad, and in Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004), a federal court in Texas dismissed a speech zone policy as unconstitutionally overbroad. The Hosty decision, however, is a step in the opposite direction. College administrators have already demonstrated a tenacious will to censor even when the law clearly limited their ability to do so. The legal ambiguity that Hosty creates, the unparalleled discretion it grants college administrators, and the legal protection it provides to administrators who censor all threaten to dramatically worsen the campus free speech crisis. If allowed to stand, Hosty will have numerous, specific, predictable, and far reaching negative consequences for free speech and robust debate on America's college campuses. It is no exaggeration to say that the Hosty opinion threatens the existence of the independent collegiate media. Universities have not shown great tolerance for the free press. If there is no longer a presumption of independence or of public forum status when a public university establishes a student newspaper, *19 there should be no doubt that administrators who wish to censor will take advantage of this ambiguity. Public universities will be able to argue that any paper that receives any kind of benefit - whether financial support or simply the use of office space - from the university is subject to administrative control. If past experience is any guide, colleges will pay lip service to the importance of student press freedom, but they will quickly take advantage of any legal means available to punish or control student newspapers that anger or offend students or administrators. For example, in a memorandum to all California State University presidents written only ten days after the Hosty decision, California State University General Counsel Christine Helwick wrote that: while the Hosty decision is from another jurisdiction and, as such, does not directly impact the CSU, the case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers, provided that there is an established practice of regularized content review and approval for pedagogical purposes.18 In this same way, Hosty threatens the existence of independent student groups. If the primary question under Hosty is whether a student group is in some way “subsidized,” any group that receives any sort of benefit or student fees could be threatened with administrative control. The possibility that a court might later determine that the student group or publication was entitled to some form of public forum status would hardly protect the overwhelming majority of these groups that are neither willing nor affluent enough to mount a legal defense. *20 This case also re-opens issues relating to collegiate liability for student media and student groups formerly considered settled. It also allows administrators virtually unlimited freedom to experiment with censorship above and beyond even the broad discretion granted to them under Hosty. Finally, there is no reason to believe this holding will remain limited to public colleges - private colleges that promise free speech to their students tend to base their own speech policies on First Amendment standards.19 Hosty v. Carter will have reverberations from the community college to the Ivy League. Administrators will impose the “intellectual strait jacket” that this Court has long feared, and the consequences will be profound. As FIRE co-founder Alan Charles Kors once said, “A nation that does not educate in freedom will not survive in freedom, and will not even know when it is lost.”20

Moreover, censorship is the most important impact for student freedom. It makes students bad reporters and activists later on in their life. Free press is the most important version of free speech. Sanders 06
Chris Sanders Jd Censorship 101: Anti-Hazelwood Laws and the Preservation of Free Speech at Colleges and Universities 58 Ala. L. Rev. 159, 2006

More significantly for the realm of American collegiate press freedom, the decision marked the first time that an en banc circuit court ever explicitly applied the Hazelwood framework to an extracurricular student publication. 99 The court rejected the idea that college students' status as adults frees them from Hazelwood's grasp, noting that though age is a relevant factor as to students' maturity, it is irrelevant to other concerns expressed in Hazelwood, such as "the desire to ensure 'high standards for the student speech that is disseminated under the school's auspices'" and "the goal of dissociating the school from 'any position other than neutrality on matters of political controversy.'" 100 The court also refused to draw a bright-line distinction between curricular and extracurricular student speech, though it pointed to evidence that the Innovator reasonably could be considered a limited public forum under Hazelwood. 101 In a vigorous dissent, Circuit Judge Evans argued that the majority underestimated the significance that Hazelwood attached to students' age and that the secondary and postsecondary environments are not analogous. 102 The dissent also observed that no other post-Hazelwood case "would suggest to a reasonable person . . . that she could prohibit publication simply because she did not like the articles the paper was publishing" 103 and warned that Hosty "now gives the green light to school administrators to restrict student speech in a manner inconsistent with the First Amendment." 104¶ B. The Big Chill: How the Hazelwood Framework Could Hurt College Students' Free Speech¶ Even though the Supreme Court opted not to hear an appeal in Hosty, 105 the Seventh Circuit's controversial decision has reinvigorated the old Hazelwood debate and has raised the prospect of college students' fighting the same sort of First Amendment battles they thought they had left behind upon their high school graduations. It thus is both timely and relevant to examine the hazardous and unintended consequences that could ensue if Hazelwood goes to college. *171 ¶ 1. Say No More: Hazelwood's Dangers for College Students' Free Expression¶ Post-Hazelwood censorship disputes have not been limited to high schools; a number of colleges and universities have gotten in on the action as well. In 2003, the acting president of Hampton University in Virginia seized the entire press run of the student newspaper, Hampton Script, after it printed her letter responding to a story about a school cafeteria's health-code violations on page three, rather than on the front page as she requested. 106 An Indiana university last year briefly instituted a policy to require students to get approval from the school's marketing department before speaking with reporters. 107 In Alabama, an art student sued in late 2005 after university officials removed his artwork, which included nudity, from an on-campus exhibit that cautioned visitors before they entered that some of the works might contain nudity. 108 And a growing number of higher-education institutions have begun to test the First Amendment's boundaries by establishing "free speech zones" that limit the on-campus locations where citizens can express their grievances 109 and by instituting (frequently overbroad) "speech codes" in an attempt to combat racial and sexual harassment. 110¶ In today's atmosphere of increasing collegiate regulation of student speech, the application of the Hazelwood test to universities could unintentionally cripple college journalism. Because most colleges' student publications receive some form of financial assistance from the university -- either directly through student fee allocations or indirectly through the provision of free or low-cost office space or equipment -- the Hazelwood framework established for school-sponsored student expression potentially could apply to the vast majority of college publications. 111 Such an outcome would leave student newspaper or yearbook editors in a difficult position: Do they play nice and allow administrators to exercise prior review, which could convert their publications into little more than propaganda-laden puff pieces, or do they stick to their ethical guns and risk funding cuts or worse? Under Hazelwood, college editors would be forced to conduct a cost-benefit analysis when faced with a column that expresses an unpopular opinion or a story *172 that could make their school look bad. Inevitably, like many of their high school counterparts, some might decide to forego the hassle. 112¶ The fallout from Hazelwood's application to colleges would not be limited to newspapers and yearbooks. 113 Other forms of student expression, such as a student group's choice of speaker or performance artist, could be subject to administrative veto. Newly created publications would be especially vulnerable, as they would likely have a more difficult time demonstrating their status as a public forum than established publications. Even professors could wake up one day to discover that the academic freedom they have cherished for so long is now nothing more than "a professional courtesy that college administrators may lawfully disregard on pedagogical grounds." 114 If Hazelwood arrives on college campuses, it is difficult to see a stopping point for the wreckage it could leave in its wake.¶ 2. "Too Much Freedom": How the Extension of Hazelwood to Universities Could Endanger the Future of the First Amendment¶ Because Hazelwood, intentionally or otherwise, greatly expanded secondary school officials' powers to censor student speech on a host of topics, 115 college effectively provides many young people with their first taste of largely unfettered free speech rights. If Hazelwood follows students to universities, however, their introduction to a fully functioning free press could be delayed for years longer. This result would be disastrous for the journalism profession, which soon would find its ranks filled with freshly minted journalism school graduates inadequately prepared to pursue controversial stories aggressively and to endure the backlash therefrom.¶ It also likely would exacerbate what appears to be a disturbing trend in American society: the existence of a sizable plurality of citizens who do not understand the importance of free speech rights. A 2004 University of Connecticut survey of more than 112,000 high school students found that 32 of them think the press has "too much freedom" and that 36 believe *173 newspapers should clear their reporting with the government before publication. 116 Meanwhile, the 2005 State of the First Amendment survey discovered that those beliefs often do not change much once citizens reach the age of maturity; 23 of the survey's adult respondents said the First Amendment "goes too far in the rights it guarantees," down from almost 50 in 2002 (shortly after the September 11, 2001, terrorist attacks). 117 The extension of Hazelwood to colleges could lead an even larger number of Americans, during some of their most formative years, to become more accepting of official limitations on the content of their speech. 118 That, in turn, could pave a dangerous path toward vastly expanded federal and state speech regulation and a society in which "free" speech is nothing more than a distant memory from an earlier time.
Advantage 2 – state control
My second contention is that instances of censorship will get misapplied. This debate comes down to who you want making decisions for you. If the government makes those decisions they will always make decisions on behalf of the powerful, not the powerless. Majeed, BA, 09
Majeed, Azhar. "Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes." Georgetown Journal of Law and Public Policy 7.2 (2009). CC
B. Impact on Campus Speech Due to their many constitutional flaws, speech codes have had, and continue to have, a severely harmful impact on campus speech. First, speech codes create a “chilling effect” on much campus speech, whereby students in many instances censor themselves or refrain from speaking altogether. Second, speech codes suppress disfavored speech. Third, speech codes invite a feeling of entitlement, or a perceived right not to be offended, among many students. Fourth, by stifling campus speech so pervasively, speech codes threaten the very vitality and functioning of America’s colleges and universities. 1. The Chilling Effect As discussed in the previous section, speech codes are often overbroad or vague or both. They typically fail to provide students with adequate notice of the categories of speech that are prohibited and the forms that remain permis- sible. Students must necessarily guess as to the scope of the speech code, and additionally, an administrator attempting to enforce the speech code in a particu- lar case must arbitrate the imprecise language and uncertain reach of the code. Under these circumstances, “members of the university community may well err on the side of caution to avoid being charged with a violation.”130 Some potential speakers may even refrain from speaking out altogether, as they become “so fearful of offending any person or group that they will effectively exercise self-censorship.”131 This chilling effect prevents many crucial forms of discussion and debate from taking place, detracting from the university cam- pus’s function as a true marketplace of ideas. Such chilling of expression is fundamentally impermissible under First Amendment law.132 The chilling effect is made even worse by the use of “implicit speech codes,” whereby universities, rather than maintain a written policy to be followed, selectively punish speech on a case-by-case basis.133 Implicit speech codes are informal mechanisms through which administrators, on an ad hoc basis, seek to censor and punish speech which they dislike. They represent a blatant attempt to evade the constitutional scrutiny attached to written speech codes.134 Whereas written speech codes, it can be argued, “at a minimum, are informative of what speech or viewpoint is prohibited even if they are overbroad,” implicit speech codes are “inherently vague because they provide no set of rules to follow.”135 This means that students “are not given adequate warning that their speech could result in sanctions.”136 As a result, “a strong likelihood exists that speech will be chilled because people will be overly cautious so as to avoid being sanctioned.”137 Therefore, the use of implicit speech codes contributes to the chilling effect on student speech, further hindering the free flow of ideas on campus.138

Additionally, restrictions on speech send the wrong message – college in particular is a time where students need to learn how to be activists before anything else. They should not have their words controlled by the state. Majeed, BA, 09
Majeed, Azhar. "Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes." Georgetown Journal of Law and Public Policy 7.2 (2009). CC

2. Suppression of Disfavored Topics and Viewpoints Second, speech codes suppress the discussion of disfavored topics and expres- sion of disfavored viewpoints. As previously discussed, many speech codes discriminate against expression on the basis of content or viewpoint. When universities maintain and enforce such policies, they effectively drive certain beliefs and ideas out of campus discussion. The practice of censoring and punishing speech on a selective basis leads to “intellectual pacifism,”139 whereby those with disfavored views are chilled from speaking out for fear of prosecu- tion and punishment. This results in a one-sided debate on particular issues and thus an incomplete marketplace of ideas. One commentator has labeled this phenomenon the “standardization of opin- ions and ideas” and, more directly, a form of thought control.140 Important contributions to the development and debate of ideas are essentially curtailed in the very environment where they should originate, meaning that society is ultimately deprived of many potential solutions and innovations for the fu- ture.141 After all, “the pursuit of truth requires not only an unfettered freedom of ideas, but also honesty, fidelity to reason, and respect for method and procedures.”142 Truth is discovered and knowledge is advanced through “a multitude of tongues,” not through any kind of “authoritative selection.”143 These ideals, unfortunately, are undermined by the presence of speech codes on campus. Furthermore, when campus debate is restricted to only that which is comfort- able and orthodox, those who hold those prevailing views are themselves harmed. This is due to the fact that unchallenged viewpoints tend to be poorly thought-out and weakly constructed, and therefore easily discredited.144 Con- versely, when an idea is challenged and debated thoroughly, the speaker is forced to answer those challenges and in the process strengthens and improves the idea.145 Moreover, “it is through challenging and considering disfavored ideas that a person may develop an independent mind and the opportunity to achieve social change.”146 Speech codes by and large prevent this process from taking place. The end result, then, is that the goals of debate and improvement are defeated, overtaken by “intellectual stagnation.”147 3. The Supposed Right Not to be Offended Speech codes have contributed heavily to a prevailing notion among college students that there is a general “right not to be offended,”148 giving them a sense of entitlement to be free of any speech that they find disagreeable or offensive. Far too typically, a campus speech code “purports to create a personal right to be free from involuntary exposure to any form of expression that gives certain kinds of offense.”149 This is demonstrated by the previously mentioned speech codes prohibiting “rude, disrespectful behavior,”150 any violation of “respect for personal feelings” and “freedom from indignity of any type,”151 and speech that “detains, embarrasses, or degrades” another person.152 Through the enactment and enforcement of speech codes aimed at offensive or uncivil speech, university administrators “increasingly coddle and even reward the hypersensitive and easily outraged, perversely encouraging more people to be hypersensitive and easily outraged.”153 This means that one can expect the number of complaints and instances of censorship to increase over time, not decrease, making conditions worse for free speech on campus. More- over, these speech codes encompass clearly protected expression and contra- vene longstanding jurisprudence holding that there is no exception to the First Amendment for speech which is merely offensive, prejudicial, or vile.154 Speech codes provide an institutional endorsement of the notion that students have a right not to be offended, leading students to believe they have a right to suppress any expression they may find disagreeable. This is harmful in that a modern liberal arts education requires exposure to, and tolerance of, a wide range of ideas and interactions, some of which may be disagreeable or offen- sive. The very speech curtailed by these speech codes is often what should be at the center of discussion during one’s collegiate years.155 Robert Post argues that restricting speech in this manner undermines the university goal of “critical education,” through which institutions “discover and disseminate knowledge by means of research and teaching.”156 As Post writes, “speech can be uncivil for many reasons, including the assertion of ideas that are perceived to be offen- sive, revolting, demeaning, and stigmatizing. Critical education, however, would require the toleration of all ideas, however uncivil.”157 Further, the notion that one can simply censor speech one does not like ill serves students as they transition from the relatively insulated college setting to the larger society. As they are granted this power to censor, students gain a “false sense of security unavailable outside of the college environment.”158 Instead of learning to “cope with speech they find offensive” and to “survive in the broadly diverse communities that exist on campus as well as off campus,” students are largely “turning to school officials for protection.”159 In the pro- cess, students are losing valuable life lessons about interacting with others and understanding and overcoming differences, even fundamental ones. Simply claiming offense and demanding that a university administration intervene, on the other hand, does not benefit them in the long run. Thus, the perceived right not to be offended perpetrates significant harm on the college campus. 4. The Vitality and Functioning of Our Universities By chilling much campus speech, restricting the expression of disfavored ideas and viewpoints, and contributing to a perceived right not to be offended, speech codes have caused and continue to cause tremendous cumulative harm on college campuses. As such, they threaten the very vitality and proper functioning of our nation’s colleges and universities and undermine the crucial role played by these institutions in our society. America’s universities are meant to be “bastions of free thought” which prepare students for life in the larger society.160 They traditionally “educate students not only in areas of substantive import but also, and more fundamen- tally, by training students to think and reason independently.”161 In order to fulfill their missions, universities must allow students to develop the skills of reasoning and analysis and to challenge “preconceived notions and the existing set of social and political mores.”162 Freedom of speech is a necessary prerequi- site to this objective, as it “ensures individual self-fulfillment by assisting the development of the individual character.”163 As other commentators have recog- nized, the goals of the American university are therefore “best accomplished by promoting the pursuit of knowledge and truth by the consideration of diverse opinions and the free and unfettered exchange of ideas.”164 In clear contravention of these principles, speech codes teach college students all the wrong lessons—to quickly claim offense, to censor individuals espousing views with which they disagree, to interpret expression which is even remotely controversial or offensive as “hate speech” or “politically incorrect” speech, and to stifle expression which questions and challenges the prevailing orthodoxy. Speech codes have “‘cast a pall of orthodoxy’ over university classrooms and campus life.”165 The regrettable result is that “instead of learning how to think and reason indepen- dently, students are taught that the act of questioning should be punished. . . . A univer- sity education then becomes indoctrination rather than development of the mind to challenge what is and to discover what ought to be.”166 The consequences are ultimately felt in society’s ability to develop a capable citizenry. Colleges and universities are vital parts of the educational system which “is ‘in most respects the cradle of our democracy’”167 and “essential to the maintenance of ‘our vigorous and free society.’”168 Commentators have recognized that our system of education must aim for “the creation of autono- mous citizens, capable of fully participating in the rough and tumble world of public discourse,”169 because “democratic government works better when independent-thinking individuals become active in lawmaking” and public de- bate.170 We as a society must therefore remain committed to maintaining an open atmosphere for debate, discussion, and disagreement. Deviation from this commitment will only lead to a society “composed of individuals lacking the skill or educational background to challenge governmental authority and im- prove the functioning of a free society.”171 Because speech codes “teach in- dividuals to think of government and authority with Orwellian fear,”172 they represent a significant threat to the development of capable citizens. Moreover, speech codes hinder the development of effective leaders for the future. In the Supreme Court’s words, “the Nation’s future depends upon leaders trained through wide exposure to the robust exchange of ideas.”173 One commentator echoes that “a limited education for the next generation will cause far-reaching problems because the leaders of tomorrow will be unable to adequately address the problems facing them,” making freedom of speech on campus “vital to the survival and success of our country and the world.”174 Rather than insulate students with speech codes and protect them from even slight offenses, we should allow them the freedom to make intelligent decisions for themselves when confronted with various viewpoints and modes of expres- sion—and to gain the sheer experience of doing so. Students “will eventually have to do this every day of their lives and protecting them from unpopular ideas through the regulation of speech will only serve to ill-prepare them for the world after graduation.”175 Speech codes have precisely this coddling effect and therefore should be eradicated from the college environment

And, counter speech is an effective form of speaking out and empowering students. There’s no harm to free speech. Counter speech is effective and empowers students. Calleros 95
Charles R. Calleros, Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and Yun, 27 ARIZ. ST. L.J. 1249 (1995). CC

Speech as an Instrument of Reform: The Efficacy of Counterspeech Delgado and Yun summarize the support for the counterspeech argument by paraphrasing Nat Hentoff: "Antiracism rules teach black people to depend on whites for protection, while talking back clears the air, emphasizes self-reliance, and strengthens one's self-image as an active agent inchargeofone'sowndestiny."50 Delgado and Yun also cite to those who believe that counterspeech may help educate the racist speaker by addressing 51 the ignorance and fear that lies behind hostile racial stereotyping. But they reject this speech-protective argument, stating that "it is offered blandly, virtually as an article of faith" by those "in a position of power" who "rarely offer empirical proof of their claims. _{52 The authors argue that talking back in a close confrontation could be physically dangerous, is unlikely to persuade the racist speaker to reform his views, and is impossible "when racist remarks are delivered in a cowardly fashion, by means of graffiti scrawled on a campus wall late at night or on a poster placed outside of a black student's dormitory door." 53 They also complain that "even when successful, talking back is a burden" that minority undergraduates 54 should not be forced to assume. In rejecting the counterspeech argument, however, Delgado and Yun cast the argument in its weakest possible form, creating an easy target for relatively summary dismissal. When the strategies and experiential basis for successful counterspeech are fairly stated, its value is more easily recognized. First, no responsible free speech advocate argues that a target of hate speech should directly talk back to a racist speaker in circumstances that quickly could lead to a physical altercation. If one or more hateful speakers closely confronts a member of a minority group with racial epithets or other hostile remarks in circumstances that lead the target of the speech to reasonably fear for her safety, in most circumstances she should seek assistance from campus police or other administrators before "talking back." Even staunch proponents of free speech agree that such threatening speech and conduct is subject to regulation and justifies more than a purely educative response. The same would be true of Delgado's and Yun's other examples of speech conveyed in a manner that defaces another's property or 56 When offensive or hateful speech is not threatening, damaging, or impermissibly invasive and therefore may constitute protected speech, 57 education and counterspeech often will be an appropriate response. However, proponents of free speech do not contemplate that counterspeech always, or even normally, will be in the form of an immediate exchange of views between the hateful speaker and his target. Nor do they contemplate that the target should bear the full burden of the response. Instead, effective counterspeech often takes the form of letters, discussions, or demonstrations joined in by many persons and aimed at the entire campus population or a community within it. Typically, it is designed to expose the moral bankruptcy of the hateful ideas, to demonstrate the strength of opinion and numbers of those who deplore the hateful speech, and to spur members of the campus community to take voluntary, constructive action to combat hate and to remedy its ill effects. 58 Above all, it can serve to define and underscore the community of support enjoyed by the targets of the hateful speech, faith in which may have been shaken by the hateful speech. Moreover, having triggered such a reaction with their own voices, the targets of the hateful speech may well feel a sense of empowerment to compensate for the undeniable pain of the speech. 59 One may be tempted to join Delgado and Yun in characterizing such a scenario as one "offered blandly, virtually as an article of faith" and without experiential support. 6° However, campus communities that have creatively used this approach can attest to the surprising power of counterspeech. Examples of counterspeech to hateful racist and homophobic speech at Arizona State and Stanford Universities are especially illustrative.61 In an incident that attracted national attention, the campus community at Arizona State University ("A.S.U.") constructively and constitutionally responded to a racist poster displayed on the outside of the speaker's dormitory door in February 1991. Entitled "WORK APPLICATION," it contained a number of ostensibly employment-related questions that advanced hostile and demeaning racial stereotypes of African-Americans and Mexican-Americans. Carla Washington, one of a group of African- American women who found the poster, used her own speech to persuade a resident of the offending room voluntarily to take the poster down and allow her to photocopy it. After sending a copy of the poster to the campus newspaper along with an opinion letter deploring its racist stereotypes, she demanded action from the director of her residence hall. The director organized an immediate meeting of the dormitory residents to discuss the issues. In this meeting, I explained why the poster was protected by the First Amendment, and the women who found the poster eloquently described their pain and fears. One of the women, Nichet Smith, voiced her fear that all nonminorities on campus shared the hostile stereotypes expressed in the poster. Dozens of residents expressed their support and gave assurances that they did not share the hostile stereotypes, but they conceded that even the most tolerant among them knew little about the cultures of others and would 62 benefit greatly from multicultural education. The need for multicultural education to combat intercultural ignorance and stereotyping became the theme of a press conference and public rally organized by the student African-American Coalition leader, Rossie Turman, who opted for highly visible counterspeech despite demands from some students and staff to discipline the owner of the offending poster. The result was a series of opinion letters in the campus newspaper discussing the problem of racism, numerous workshops on race relations and free speech, and overwhelming approval in the Faculty Senate of a measure to add a course on American cultural diversity to the undergraduate breadth 63 requirement. The four women who initially confronted the racist poster were empowered by the meeting at the dormitory residence and later received awards from the local chapter of the NAACP for their activism.64 Rossie Turman was rewarded for his leadership skills two years later by becoming the first African-American elected President of Associated Students of A.S.U.,65 a student body that numbered approximately 40,000 students, only 66 2.3 percent of them African-American. Although Delgado and Yun are quite right that the African-American students should never have been burdened with the need to respond to such hateful speech, Hentoff is correct that the responses just described helped them develop a sense of self-reliance and constructive activism. Moreover, the students' counterspeech inspired a community response that lightened the students' burden and provided them with a sense of community support and empowerment. Indeed, the students received assistance from faculty and administrators, who helped organize meetings, wrote opinion letters, spoke before the Faculty Senate, or joined the students in issuing public statements at the press conference and public rally.67 Perhaps most important, campus administrators wisely refrained from disciplining the owners of the poster, thus directing public attention to the issue of racism and ensuring broad community support in denouncing the racist poster. Many members of the campus and surrounding communities might have leapt to the racist speaker's defense had the state attempted to discipline the speaker and thus had created a First Amendment issue. Instead, they remained united with the offended students because the glare of the public spotlight remained sharply focused on the racist incident without the distraction of cries of state censorship. Although the counterspeech was not aimed primarily at influencing the hearts and minds of the residents of the offending dormitory room, its vigor in fact caught the residents by surprise. 68 It prompted at least three of them to apologize publicly and to display curiosity about a civil rights movement that they were too young to have witnessed first hand. 69 This effective use of education and counterspeech is not an isolated instance at A.S.U., but has been repeated on several occasions, albeit on smaller scales.7° One year after the counterspeech at A.S.U., Stanford University responded similarly to homophobic speech. In that case, a first-year law student sought to attract disciplinary proceedings and thus gain First Amendment martyrdom by shouting hateful homophobic statements about a dormitory staff member. The dean of students stated that the speaker was not subject to discipline under Stanford's code of conduct but called on the university community to speak out on the issue, triggering an avalanche of counterspeech. Students, staff, faculty, and administrators expressed their opinions in letters to the campus newspaper, in comments on a poster board at the law school, in a published petition signed by 400 members of the law school community disassociating the law school from the speaker's epithets, and in a letter written by several law students reporting the incident to a prospective employer of the offending student.71 The purveyor of hate speech indeed had made a point about the power of speech, just not the one he had intended. He had welcomed disciplinary sanctions as a form of empowerment, but the Stanford community was alert enough to catch his verbal hardball and throw it back with ten times the force. Thus, the argument that counterspeech is preferable to state suppression of offensive speech is stronger and more fully supported by experience than is conceded by Delgado and Yun. In both of the cases described above, the targets of hateful speech were supported by a community united against bigotry. The community avoided splitting into factions because the universities eliminated the issue of censorship by quickly announcing that the hateful speakers were protected from disciplinary retaliation. Indeed, the counterspeech against the bigotry was so powerful in each case that it underscored the need for top administrators to develop standards for, and some limitations on, their participation in such partisan speech. 72}

Finally, independently we need to preserve free speech. Every major civil rights movement is built on it. There is no liberty without free speech. Strossen, Former President of the ACLU, 00
Strossen, Nadine. "Incitement to hatred: Should there be a limit." S. Ill. ULJ 25 (2000): 243. CC
C. A Robust Freedom of Speech is Especially Important for Advancing Egalitarian Causes First and foremost, all those who seek equal rights have an especially important stake in securing free speech. For example, as I have already noted, the Civil Rights Movement in the United States was dependent on a robust concept of free speech, one that was capacious enough to 'encompass hate speech. Critical to the success of that movement were the landmark rulings of the United States Supreme Court under the leadership of Chief Justice Earl Warren-not only the Warren Court's rulings dealing directly with the Constitution's equal rights guarantee, but also its rulings upholding a strong concept of free speech, even for the most provocative and controversial speech.47 Important as the Court's equal protection rulings were for advancing the civil rights cause, those rulings could not even have been achieved, let alone effectively implemented, without the organizing and litigating efforts of the NAACP (National Association for the Advancement of Colored People), without the speeches and demonstrations of Martin Luther King, Jr. and other civil rights leaders and activists, and without the press coverage that mobilized the support of the American public and of the national government. All of these essential foundations for advances in civil rights depended upon the Warren Court's broad, vigorous conception of free speech-a conception sufficiently broad and vigorous that it necessarily also encompassed hate speech and other forms of speech that now are said to undermine equality. The Warren Court record conclusively shows that, in the words of historian Samuel Walker, "The . . . civil rights movement... depended on the First Amendment."' Civil rights leaders concur in this judgment. In the words of Benjamin L. Hooks, former Executive Director of the NAACP, "The civil rights movement would have been vastly different without the shield and spear of the First Amendment." 9 Likewise, Eleanor Holmes Norton, an African-American woman who served as Director of the Equal Employment Opportunity Commission, and who now represents the District of Columbia in Congress, succinctly summarized the positive, symbiotic relationship between free speech and equality during the Civil Rights Movement; she said, "There was always the First." In his 1994 book, Hate Speech: The History of an American Controversy, Samuel Walker shows that, throughout the twentieth century, the equality rights of African-Americans and other minority groups were dependent on a robust free speech concept. He further shows that, realizing the importance of protecting even speech viewed as hateful or dangerous-because their own speech certainly was so viewed in many Southern and other communities-the major American civil rights organizations consistently opposed efforts to restrict hate speech. As Walker concluded, "The lessons of the civil rights movement were that the interests of racial minorities and powerless groups were best protected through the broadest, most content-neutral protection of speech."'" In his 1965 book, The Negro and the First Amendment, University of Chicago Law Professor Harry Kalven documented that the Civil Rights Movement depended on free speech principles. These principles allowed protestors to carry their messages to audiences who found them highly offensive and threatening to their most deeply cherished views of themselves and their way of life. Equating civil rights activists with Communists, subversives, and criminals, government officials mounted inquisitions against the NAACP, seeking compulsory disclosure of its membership lists and endangering the members'jobs and lives. As Kalven concluded, "Only strong principles of free speech and association could-and did-protect the drive for desegregation." 2 Martin Luther King, Jr., wrote his historic letter from a Birmingham jail,"3 but the Birmingham parade ordinance that King and other demonstrators had violated eventually was declared an unconstitutional invasion of their free speech rights.54 Moreover, the Civil Rights Act of 1964, which these demonstrators championed, did become law. The more disruptive forms of civil rights protest, such as marches, sit-ins, and kneel-ins-which some observers credit as being the most effective-were all especially dependent on generous judicial constructions of the free speech guarantee." Notably, many of these protective interpretations initially had been formulated in cases brought on behalf of anti-civil rights demonstrators. But the same principles and precedents also sheltered the insulting and often racist language that militant black activists hurled at police officers and other government officials.' An awareness of these principles and practicalities is precisely what prompted the African-American civil rights lawyer, Anita Rivkin-Carothers, to represent the white supremacist Matthew Hale in his effort to secure a license to practice law in Illinois. One journalist paraphrased his interview with her on this point as follows: She urges her critics to remember that without First Amendment rights, the Rev. Dr. Martin Luther King never would have marched. Without free speech protection, Julian Bond-having called the Vietnam War racially discriminatory-would have been barred from taking the seat in the Georgia legislature to which he had been duly elected. She would remind Muslims, among her harshest critics in the Chicago area, that Louis Farrakhan could not speak his beliefs without the First Amendment." Significantly, the ACLU has come to the defense of the free speech rights of every single one of the individuals whom Rivkin-Carothers cites-Martin Luther King, Jr., Julian Bond, and Louis Farrakhan alike-since all of their views have been deemed dangerous and subversive by some authorities in some places at some points in our history. Therefore, all of them-along with Matthew Hale himself-have been vehicles for protecting the overarching free speech rights at stake for the benefit of everyone in this country, just as Rivkin-Carothers stated. The same insight was emphasized by another African-American civil rights advocate who also defended Hale's right to practice law, journalist Clarence Page. In a syndicated column explaining-why Hale should not be denied bar admission, Page wrote: "The First Amendment swings both ways and so does every effort to restrict it. Attempts to silence unpopular minority views at one extreme inevitably swing back to squash minority views on the other side." 8 The mutually reinforcing relationship between a strong free speech guarantee and equality rights obtains for other equality movements, in addition to the Civil Rights Movement on behalf of African-Americans. For example, the movements for women's rights and reproductive freedom always have depended upon strong protection of free speech for ideas that many communities have seen as wrong, offensive, and dangerous. Conversely, censorship has always been a particularly potent weapon for thwarting advances in women's rights, including reproductive freedom. The same pattern holds for the lesbian and gay rights movement. I explore these mutually-reinforcing relationships between equality and free speech more thoroughly in my book, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights." Indeed, for one of our newest civil rights movements-on behalf of lesbians, gay men, and other sexual-orientation minorities-defending free speech is essentially indistinguishable from promoting equality rights.' The first essential step for lesbians and gay men in seeking equal rights is "coming out of the closet," or publicly acknowledging their sexual orientation. This act is at once an exercise of free speech rights and an assertion of equality rights. Conversely, those who discriminate against lesbians and gay men often simultaneously attack their free speech and equality rights. A prime example is the United States military's exclusionary "Don't Ask, Don't Tell" policy. ' Under this policy, even the most outstanding, brave, and patriotic service members will be drummed out not only for engaging in homosexual conduct, but also forjust saying something that indicates their sexual orientation, even if they had never engaged in any actual homosexual conduct. That is the"Don't Tell" prong of the policy. Accordingly, in the ACLU's constitutional challenge to this policy, which we brought jointly with the Lambda Legal Defense Fund, we argued that it is doubly unconstitutional, violating both equality and free speech rights, and the lower court agreed with us on both scores.62