Harvard Westlake Morganbesser Aff
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| Loyola | 2 | XX | XX |
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| USC | Doubles | XX | XX |
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| CPS | 1 | Opponent: XX | Judge: XX Chronicle AC |
| Damus | 2 | Opponent: XX | Judge: XX 4th Amendment AC |
| Loyola | 2 | Opponent: XX | Judge: XX Nuclear Renaissance AC |
| Yale | 3 | Opponent: XX | Judge: XX Updated Nuclear Renaissance AC |
To modify or delete round reports, edit the associated round.
Cites
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JanFeb - Chronicle ACTournament: CPS | Round: 1 | Opponent: XX | Judge: XX Part 1: Framing Free speech is a pre-requisite to any rational moral system- without it self-realization is impossible. Eberle 94 The Court's decision... be vigilantly investigated. Free speech facilitates the development of moral reasoning- restrictions should be prima facie rejected. Dwyer 01 Direct Nonconsequentialism Let... (protect) it everywhere. Consequentially, Free speech is a gateway to every other impact. D’Souza 96 In the absence... at every turn. Plan Text: Public colleges and universities in the United States ought not restrict constitutionally protected journalist speech. Advantage 1: Stop The Press Censorship of student journalism is increasing at the worst possible time. Censorship discourages questioning the government. Schuman 12-8 Well, here’s some... censorship is acceptable. The legal justification for newspaper censorship is a 7th circuit decision that applied Hazelwood to universities-this allows unchecked arbitrary censorship by administrators. Goodman 05 In contrast to... legacy of Hazelwood. Regulation of newspapers is a crucial precedent used to justify widespread campus censorship-it uniquely empowers and protects administrators to censor. Lukianoff 05 Commentators from across... it is lost.”20 Universities are the most important site of first amendment activity- ignore negative evidence written about other contexts. Goodman 2 The University is... and university campuses. Campus free speech preserves a free and productive society. Lukianoff 2 This Court has... ‘conventions of decency.’ ”). Advantage 2: Civic Engagement Censorship of college journalism guts civic engagement. LoMonte 12-1 Frank D. LoMonte, executive... always be guaranteed.” Civic engagement is the vital internal link to solving every existential problem- its try or die for the affirmative. Small 06 What will be... do just that. Trump victory proves the case is a disad to every K- failure to prioritize civic engagement causes rightwing takeover. Rorty 98 If the formation... a resourceful spook."10 Underview | 12/17/16 |
JanFeb - Whole Res ACTournament: USC | Round: Doubles | Opponent: XX | Judge: XX Freedom of expression is under serious threat on campuses, and has been for some time. You may have heard of the phenomenon of free speech zones at colleges. These are tiny areas, such as a 20-foot-wide gazebo, which students are told are the only places they can exercise their free speech rights. About a fifth of universities maintain such restrictions. Take one of California's public universities where we recently became involved-Cal Poly Pomona. We sued to protect a student who was not only told that he had to get permission two weeks in advance to use the campus free speech zone, but also that he had to wear a badge saying that he'd been granted the right to engage in free speech at Cal Poly Pomona. Then there are the speech codes that now exist on most campuses. We rate them, at thefire.org, using a green-, yellow-, or red-light system. Red- light colleges have codes that are very bad for free speech, yellow means some problematic codes, and we give green lights to schools that have no policies that threaten free speech. Sadly, very few universities earn green lights. Red-light codes are generally laughably unconstitutional codes, and would be thrown out of any court if someone was willing to invest time and money to challenge them. The code promulgated by the University of Connecticut, for instance, banned the use of “derogatory names, inconsiderate jokes, and inappropriately directed laughter.” Be careful where you laugh. Though ruled unconstitutional, knockoffs popped up at other schools as well, most recently at Drexel University, where it took more legal intervention on behalf of students to get it suspended. Why are college administrators trampling on free expression? One reason is federal overreach. The U.S. Department of Education under the Obama administration has made things much worse. It provided a new definition of harassment that is completely stripped of the safeguards the U.S. Supreme Court had earlier put in place to protect freedom of speech. Instead of a standard of harassment being a pattern of discriminatory behavior that is “severe, persistent, and pervasive,” the Department of Education bureaucrats decided to define harassment as any unwelcome verbal conduct or speech. And the department explicitly got rid of the longstanding “reasonable person” standard, meaning that anyone who subjectively experienced “unwelcome” speech has been harassed. That opens the door to miscarriages of justice like the case of Laura Kipnis. A feminist professor at Northwestern University, she wrote an article for the Chronicle of Higher Education saying that Title IX has become too expansive and is patronizing to women. She mentioned (without names) a sexual harassment claim then underway at Northwestern. And for writing this article-engaging in free speech in the country's most popular higher-education journal-she was charged with violating Title IX and officially investigated. She was not allowed to know who was accusing her or what the charges were. She was not allowed to write anything down in her hearing, or have a lawyer present. After a few months of inquisition, she decided to write about her Kafkaesque experience in the Chronicle of Higher Education. Only after this unwanted publicity did the university halt the investigation. This problem is not limited to sexual harassment cases. In most jurisdictions, the federal proscribing of unwelcome speech is automatically expanded to other categories. At the University of Montana, for instance, the ban included unwelcome political opinions. If any speech you subjectively choose not to welcome counts as harassment, there is literally nothing that is safe to say on campuses. These speech codes consistently fail, squash dissent and prop up university control. Fisher _ Donald Trump is a divisive figure, but does writing his name in chalk on a university sidewalk amount to the harassment of minority students? Some students at Emory University claimed as much last spring, when the then-candidate's name, along with phrases like "Build a Wall," appeared near the buildings where many student groups had their headquarters. The pro-Trump messages were a "direct threat to their safety,” the students contended. Asked by some to defend the First Amendment and by others to side with the aggrieved students, Emory's president came down squarely in the middle. On the one hand, "we must value and encourage the expression of ideas,” he said. Yet on the other, the university must "provide a safe environment" for students. Then he announced Emory would devise new procedures for reporting of incidents of bias.¶ At the University of Colorado Boulder, meanwhile, a tenured sociologist named Patti Adler ran into trouble when she had students in a sociology class watch skits depicting aspects of the underworld of prostitution. When some students complained, the university ordered Adler to stop teaching the class, and the provost sent an email to students explaining that “academic freedom does not allow faculty members to violate the University's sexual harassment policy by creating a hostile environment for their teaching assistants, or for their students attend the class."¶ Freedom of speech is often misunderstood, frequently taken for granted, and always on the defensive against forces both within and outside of government.¶ On college campuses - nominally bastions of free inquiry, robust debate, constructive lessons in failure, and unexpected discovery - there exists a prevailing controversy over the scope and meaning of free speech.¶ Some believe the universal right to free expression should extend to all, even ideas that are deemed a threat to the public interest (as homosexuality was only a generation ago) or which are a threat to prevailing conventional wisdom and political norms (as miscegenation was in much of the country, as well). A competing viewpoint holds that free speech is just a cop-out code phrase, mostly working in the service of professional trolls or entitled jerks to abusively act out with impunity.¶ A prominent literary organization leaps into the fray¶ PEN America, the literary and human rights association that lists as one of its core principles a commitment to "protect open expression in the United States and worldwide," set out to explore the state of free speech on the nation's campuses - reexamining several high-profile incidents and controversies. While not comprehensive, the report, published this fall, is impressively thorough, treating much of its content as teachable case studies, rather than a set of self-affirming anecdotes.¶ Some press coverage, however, suggested that the PEN America report - titled “And Campus For All: Diversity, Inclusion, and Freedom of Speech at U.S. Universities" - had exonerated campuses from the charge that they insufficiently protect free speech, and that it sided with students who think “cries of 'free speech' are too often used as a cudgel against them,” as the New York Times put it.¶ The report itself contributes in a small way to this confused take, largely due to a single line in its conclusion which (improbably) asserts that there is no “pervasive 'crisis' for free speech on campus.” But that same report exhaustively details dozens of cases where certain speech was inappropriately muted on campus.¶ More examples: Skidmore College's Bias Response Group determined that the posting of Donald Trump's official campaign motto, "Make America Great Again," in classrooms where women and people of color worked constituted "racialized, targeted attacks." A tenured associate professor at Louisiana State University, Teresa Buchanan, was dismissed for the offenses of using off-color language (including "fuck no”) in class, and off campus (where she said “pussy” in a conversation with another teacher). Like the University of Colorado's Adler, Buchanan was deemed to have created a "hostile learning environment."¶ The authors write of the "chilling effect" such administrative actions have on professors who fear reprisals for unintentional offense, and as a result, will avoid certain subjects, including rape law and even some aspects of Greek mythology, out of an abundance of caution.¶ An unflinching defense of free speech, coupled with sympathy¶ Taken in its totality, PEN America's report rejects the idea that free speech is a tool of oppression. Yet the report differs from the standard conservative anti-“PC” diatribe in that it also shows a great deal of sympathy for the concerns of minority groups on campus. Adding further nuance, the authors spend a great deal of time explaining how free speech is a vital tool for people removed from the traditional power structures at America's institutions of higher learning.¶ Given how much space the report gives to the testimony of students who feel marginalized and targeted on campuses, the report will surely displease certain free speech absolutists, who might be inclined to argue that today's college students need to get over their addiction to hurt feelings. Such people would also likely roll their eyes at the report's defense of the positive role of "safe spaces" (very narrowly defined) on campus.¶ But such critics would be missing the point. The report makes clear that colleges can acknowledge grievances, support reasonable efforts to protect the mental and physical well-being of its students, ensure students are protected from overt harassment - and also defend the right to free expression for all.¶ Suzanne Nossel, PEN America's executive editor, told the Times that the organization's stance is not the “doctrinaire 'free speech or bust' position.” Striking an admirable balance, the authors present a stalwart defense of free speech but also discuss the “chilling effect” that bigotry, both casual and overt, can have on the free expression of historically marginalized identity groups.¶ The American Bar Association's (ABA) analysis of speech that crosses the line into harassment is used as a reference point. The public expression of the view that homosexuality is a sin - which would strike many as bigoted, hurtful, and on some level intimidating for gay people to be confronted with - remains protected speech. However, the ABA notes that the repeated personalized use of a derogatory slur, directed at a person "so often and so publicly that it impacts his or her peaceful enjoyment of the school or campus," enjoys no First Amendment protection.¶ At the same time, the report's authors also detail dozens of cases where free speech was inappropriately muted on campus, and how such incidents create chilling effects on speech.¶ The authors express the need - “in an increasingly multicultural nation” - to foster a campus atmosphere suitable for allowing students to “communicate across vast divides in experience and world view,” noting that this can't happen if respect for civil discourse manifests itself as "ratification of an unequal status quo.” But nor can it happen when “calling out offensive behavior shades into an oppressive atmosphere of political correctness and even censorship.”¶ You can practically see the authors tiptoeing through a minefield, always aware of the very legitimate social concerns that are too often cavalierly dismissed as political correctness run amok. Yet the authors never waver from their essential principle, which is a rock-ribbed defense of both the moral and practical need to defend free speech as both the most vital tool available for the disenfranchised - and essential for the preservation of honest intellectual inquiry and debate. That conclusion may seem uncontroversial, even obvious, to some - but in today's campus climate, it's an important intervention.¶ A limited defense of “safe spaces”¶ The discussion of "safe spaces" has become one of the most divisive subsections of the debate over free speech on campus. PEN America's partial endorsement of that concept may come as a surprise: The group describes the creation of "small, self-selected groups united by shared views," which could be anything from a group of five Iranian-born students kicking around stories from back home in a dormitory common room to a chapter of the Hillel club, which on some campuses consist of hundreds of Jewish students as members.¶ But the report opposes making entire campuses "safe spaces" from discomfort. The authors argue against such a "hermetically sealed intellectual environment where inhabitants could traffic only in pre-approved ideas."¶ This is key. Students of all political and identity stripes should be permitted to form their own independent groups for any reason, whether it's just to feel "at home" or express sentiments that wouldn't be as popular in the broader campus community. But these students should not expect their safe space to extend to every minute of their day or every inch of the school.¶ Unfortunately, some students have demanded campus-wide safe spaces, leading to such self-spiting actions as closing the campus from deliberately provocative speakers such as Milo Yiannopoulos, the Breitbart technology editor/notorious internet troll. Rather than allowing Yiannapoulos's noxious grandstanding to serve as its own indictment, several campuses have preferred to keep their students “safe” from his outlandish views.¶ But pretending "problematic" thought doesn't exist won't make it so; such perspectives should be engaged, defeated, in the public arena of ideas.¶ In perhaps the most cogent line of the entire report, the authors write: “Overreaction to problematic speech may impoverish the environment for speech for all.” In the name of social justice, some students are demanding administrators become the arbiters of what speech is legitimate and what isn't. These students don't seem to grasp that by granting authority figures the power to adjudicate which speakers have the right to be heard, they will inevitably find their own speech silenced when opponents claim offense, fear, or discomfort.¶ Calls for crackdowns on “offensive” speech inevitably boomerang¶ It's already happening. Just ask the Palestinian activists whose boycott campaigns against Israel have been deemed hate speech by a number of public universities, and whose future political activities could be endangered by an act of Congress. Just this month, the Senate unanimously passed the "Anti-Semitism Awareness Act,” which directs the Department of Education to use the bill's contents as a guideline when adjudicating complaints of anti-Semitism on campus. Among the speech-chilling components of the bill, the political (and subjective) act of judging Israel by an "unfair double standard" could be considered hate speech.¶ To cite other examples of unintended consequences of the crackdown on “offensive” speech, a black student at the University of Michigan was punished for calling another student “white trash,” and conservative law students at Georgetown claimed they were “traumatized” when an email critical of deceased Supreme Court Justice Antonin Scalia landed in their inboxes.¶ The PEN America report also notes the Foundation for Individual Rights' analysis of hundreds of campuses with “severely restrictive” speech codes. While a number of these campuses don't aggressively enforce their speech codes, the rules remain on the books; more than a dozen such codes have been overturned in the courts.¶ What's even more concerning is the increasingly popular notion that some ideas, such as opposition to abortion, should simply be “non-platformed" - that is, deemed unworthy of even being heard on campus. Although the trend of denying contentious speakers such as former Secretary of State Condoleezza Rice or refugee turned Dutch politician and critic of Islam Ayaan Hirsi Ali public platforms by "disinviting" them from campus is disconcerting, it is not censorship.¶ However, a pro-choice group physically blocking the display of a pro-life group on the campus of the University of Georgia is a form of censorship. As is the case of University of California Santa Barbara professor Mireille Miller-Young, who assaulted a young woman holding a pro-life placard including graphic imagery in a "free speech" zone on campus and stole her sign. When the young woman objected to the theft of her property, Miller-Young replied, "I may be a thief, but you're a terrorist."¶ Like it or not, almost half of all Americans consider themselves pro-life. Banning their perspective from campus won't win over converts, and it's both immoral and counterproductive to declare completely legitimate political perspectives beyond the pale. Think of antiwar protests or demonstrations in support of integration when both causes were broadly unpopular, and then try to consider a majority on campus declaring their school a "safe space" from such "offensive" expressions of free speech.¶ Comedy can't exist without room to offend¶ The report recognizes the need to provide room for artists to provoke and not be hindered in their ability to take chances. This argument cannot be made enough. Iconic comedians such as Richard Pryor, Lenny Bruce, and George Carlin all deployed language and epithets that were edgy in their time and would be considered beyond the pale today. Yet each used the power to shock in service of fighting against war, bigotry, and the status quo. If today's sharpest comedic minds are constricted to the point they are unable to even attempt pushing boundaries, all we'll get (and deserve) is a generation of safe-as-milk karaoke comedians tousling the hair of the powerful instead of challenging them.¶ Of course, many attempts at subversive satire will fall flat, coming off as more tasteless than witty. But the punishment for a bad joke shouldn't be official disciplinary action or banishment from campus, which is a fate that has befallen a number of college campus comedy publications.¶ To cite an example not included in PEN's report, Chris Lee, an African-American student at Washington State University, staged a take-no-prisoners comedic musical - which he went out of his way to explain would offend delicate sensibilities, including on the play's ticket and on prominent signs. (The play, a South Park-esque parody of The Passion of the Christ, featured a song called "I Will Always Hate Jews" sung to the tune of Whitney Houston's "I Will Always Love You," babies being shot out of a Mormon mother's womb and caught by Jesus, and plenty of other outrageous material.)¶ Lee was subsequently subjected to a school-approved "heckler's veto." Students physically disrupted his show's performance, shouting death threats at the author. That they could have just skipped the show seems to have not occurred to these socially conscious students, or the administrators who encouraged their mob-like actions by telling students to stand up and declare "I am offended" during the play if they felt like it. Campus police reportedly told Lee they would not protect the actors if protesters stormed the stage. (Once this incident was publicized by free speech advocates, the university reversed its position.)¶ On a larger political stage, the "heckler's veto" tactic was praised by those who enjoyed seeing a Donald Trump rally in Chicago disrupted and eventually canceled, but would they really defend it if a mob of raging Trump supporters crashed a Hillary Clinton rally?¶ PEN America argues that too often “protests and forms of expression are treated as if they are incursions on free speech when they are manifestations of free speech.” But the group rightly draws the line at shouting down speakers.¶ The left needs more free speech advocates¶ The report challenges free speech advocates “to articulate how to reconcile unfettered expression with acute demands for greater equality and inclusion,” suggesting they often ignore the second half of that formulation. However, the authors also argue that “liberal to left-leaning organizations" need to do a better job of "integrating free speech awareness into their agendas."¶ UCLA grad student and pro-Palestinian activist Rahim Kurwa is quoted in the report as saying: “One cannot have diversity and social justice speech in spaces without free speech … free speech is not incompatible with our campaign but essential to it.” He adds: “Social change isn't frictionless. It only happens with friction. You have to engage.”¶ Perhaps because Kurwa is part of a rare subset of progressive political activism that finds itself imperiled by top-down censorship imposed in the name of sensitivity, he understands how free speech amplifies his voice - even as it provides his opposition with a platform, too. Kurwa needs more of his allies on the left to come to that understanding.¶ The same rights that can be put "in service of a right-wing agenda" (as the Times put it in its piece about the PEN report) are also the best tools available for marginalized voices on the left and everywhere in between. As we approach the "Trump era," perhaps student activists will be less inclined to put their faith in rigidly defined policies executed by faceless authority figures - and more inclined to embrace free speech, in all its unwieldy, essential glory. These restrictions disempower young people and kill civic engagement. Majeed '09 Civic engagement is the vital internal link to solving every existential problem- its try or die for the aff. Small 06 Part 2 - Free speech is an unqualified good Liberation requires free speech - people fighting for restrictions have misread their history. Hume 15 Hume, Mick Mick Hume (born 1959) is a British journalist and author whose writing focuses on issues of free speech and freedom of the press.. Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?. HarperCollins UK, 2015. “What is really being said by these campaigns is that people can be the victims of words, in need of protection from speech. That they are objects to which things are done, rather than subjects who can shake things up and make change happen. So their interests are apparently best served by having less freedom rather than more.¶ This presents a striking contrast with the not-too-distant past. In times when women, black people, gays and other oppressed groups in the West faced far more abuse, discrimination and violence than today, they fought for greater freedom of expression to give them a voice. It was accepted that a precondition for fighting for equality and liberty was being able to speak, read and debate as you saw fit, regardless of how much it offended the other side. Their aim in speaking out was not to gain recognition as a closed, separate group with its own identity, but to win their freedom as equal citizens of a free society.¶ At the time of the First World War, Sylvia Pankhurst and the militant wing of the British Women's Suffrage movement joined forces with the Free Speech Defence Committee to “demonstrate for their right to speak out against war and inequality, often being attacked in the street for their trouble. Around the same time in America, the immigrant workers of the IWW were engaged in running battles with the police in their Free Speech Fights for the right to speak in public.¶ In the late 1960s and 1970s, the explosion of the lesbian and gay rights movement had at its core the demand for freedom of expression. Gay men in Greenwich Village, New York started their own newspaper because even the radical Village Voice would not print the word 'gay'. The cry went up to sing if you're glad to be gay. Or, to put it more in the language of the moment, as expressed in a flyer announcing the formation of the Gay Liberation Front after the Stonewall riots in 1969: “Do You Think Homosexuals Are Revolting? You Bet Your Sweet Ass We Are!'22 If you seek some speech that was truly 'offensive' to the accepted ethics of the day, look no further than that.¶ For the most accomplished argument for free speech from those fighting against oppression, we might go back further to the black American anti-slavery campaigner - and former slave - Frederick Douglass. In 1860, faced with violent repression of debate by pro-slavery forces, Douglass wrote his famous pamphlet entitled 'A Plea for Free Speech in Boston', in which he argued: “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money … And until the right is accorded to the humblest as freely as to the most exalted citizen, the government of Boston is but an empty name, and its freedom a mockery. A man's right to speak does not depend upon where he was born or upon his color. The simple quality of manhood is the solid basis of the right - and there let it rest forever.23 “If only. The former slave's appeal for free speech might sound like a foreign language to many claiming to stand for equality today.¶ All of these opinions were deemed highly offensive in their time, and the oppressed had to fight tooth and nail against the authorities for their right to express them. Are identity groups really so assaulted by hateful and offensive speech today that they must demand the authorities protect them from words by restricting the free speech of others? Though much has changed, to suppress free speech remains, in Douglass's words, 'a double wrong'. There is no way to emancipation through demanding bans and self-censorship. And, narrowing the principle of free speech spells devastation for the right as a whole. We need broad protections of the right that don't permit exceptions. Curtis 96 If we had to agree on what free speech would produce, it would be a¶ less powerful institution because its strength comes in part from its nature¶ as an institution that does not specify outcomes. A strong and broad¶ protection for free speech is profoundly incomplete-because it does not¶ tell us which view will win or what kind of art will be produced. Opponents¶ of anti-slavery speech wanted to shrink the framework so that what¶ would be produced by speech would be politically correct and would not¶ include anti-slavery expression. Many of the critics of free speech doctrine¶ and of a more libertarian view of free speech want to change existing¶ free speech doctrine to prohibit more of the wrong sort of speech¶ while allowing the right sort."""¶ Critics like Professor MacKinnon attack general free speech principles¶ because they protect speech of Nazis, Klansmen,' 8 7 and "pornographers,"""'¶ while doing nothing for their victims.189 Patrick Buchanan,¶ meanwhile, complains that the Supreme Court has protected "criminals,¶ atheists, homosexuals, flag burners . .. and pornographers." 90 Indeed,¶ part of the nature of general principles is their generality. At the same¶ time general principles were protecting the speech of racists1 91 and¶ "pornographers,"''1 2 the same general principles protected the speech of¶ advocates of integration,' 9 ' of opponents of the war in Vietnam,' 9 4 of homosexuals, 9 5 and of political radicals. 9 6 Substantially undermining the¶ generality of free speech principles may make it unlikely these principles¶ will perform that work in the future. A cursory review of these cases¶ shows the Court applied precedents protecting speech rights of Klansmen¶ and racists to protect advocates of integration and political radicals. 197¶ That is what the generality of the general principles is all about. The idea¶ that other constitutional values trump free speech can be evaluated by¶ looking at how such ideas have been applied in the past.¶ For women, a broadly defined idea of free speech has been particularly¶ important. Women were disenfranchised and deprived of basic civil¶ rights enjoyed by men, so the right to speak and petition were among the¶ few weapons they had in the long and continuing fight for equality. For¶ African-Americans the system of free speech has been a crucial means of¶ positive social change.¶ Advocates of free speech revision have the best of motives. They¶ want to silence at least some negative speech of the oppressors and protect¶ the oppressed. They point to the real pain speech can inflict and the¶ real injuries to which it can contribute. Free speech revisionists want to¶ protect diversity, as they understand it, and the oppressed, as they define¶ them. They want to protect against violence allegedly caused by books¶ and film and against the domination allegedly produced by the very existence¶ and "silencing" effect of speech. 198¶ Speech, including even political speech not focused on an individual,¶ that creates a hostile environment or that fails to respect diversity, we are¶ sometimes told, should be punished. Professor Sunstein's categories help¶ to understand why these ideas are so problematic. In spite of surface appeal,¶ we do not know what they entail or agree on what they should entail.¶ That is why the theory put into practice produces horror stories.¶ What is needed is very careful and strictly limited doctrine that attempts¶ to address problems without sacrificing the basic ideas of free speech.¶ Some careful and narrow attempts have been made in an effort to achieve¶ this goal. But at the University of Minnesota, college Republicans were disciplined¶ for handing out, in a freshman orientation fair where they and all¶ other campus groups were permitted to have booths, leaflets critical of¶ President and Mrs. Clinton and of the administration's policy on homosexuality.¶ To me, this action is an outrage against the core principle of¶ free speech. For free speech purposes, it cannot matter that I find the¶ arguments repellent or that I support, as I do, ending legal and private discrimination based on sexual orientation. These opponents of equality¶ for homosexuals share with their opponents a very basic equality-the¶ equal right to argue about the sort of society we will have. Our goal¶ should be to persuade them, not to silence them.¶ At Chicago Theological Seminary, a theology professor used an example¶ from the Talmud to illustrate the difference between sin based on¶ an evil state of mind and an act in which no evil is intended.200 In the¶ Talmud story, a person falls off the roof of a building and involuntarily¶ has sex with a woman he falls on.21 Based on this incident the seminary¶ found the professor, who had been using the story for two decades, had¶ created a "hostile or offensive" learning environment. 202 For a number of¶ reasons, including the supposed lack of state action and the problem of¶ simply translating free speech values into a university classroom setting,¶ this may not be a First Amendment violation. Still, it is a reflection of the¶ effect of calls for free speech revision, and how such calls undermine tolerance¶ and openness. It shows how radically incomplete is our underlying¶ agreement on the standards that are being enforced. It also shows the¶ danger of eliminating intent as an element of such offenses.¶ Rules that are not known until violated are like ex post facto laws,¶ and they naturally create resentment in those disciplined under them. As¶ Professor Elizabeth Fox-Genovese puts it: "The sex and discriminatory¶ harassment codes have constructed a web of impossible actions and utterances¶ that multiply with each passing day. This is a Kafkaesque world in¶ which, more often than not, you do not know the rules until you have¶ violated them. '20 3¶ With the elimination of bad speech from the dialogue in the public¶ domain and elsewhere, the assumption is that the good will triumph. But,¶ of course, the people who are classified as engaging in bad speech, watching¶ the wrong movies, reading the wrong books, making the wrong political¶ arguments, or citing the wrong story from the Talmud, do not like the¶ outcome. If that is what free speech means, they do not want it. By specifying¶ a correct outcome-by insisting on a more completely theorized¶ agreement of what free speech will produce, critics are weakening the¶ framework.20 4 Because the new theory is extremely vague, it causes other¶ problems as well.¶ A weak system of free speech is no problem for the powerful, because¶ their ideas and cherished works of art are almost never suppressed. It is a problem for dissidents. The speech codes that are springing up throughout¶ the land reflect the new power (in limited environments) of their creators,¶ as well as the fact that ideas of free speech in the public domain¶ translate imperfectly in more limited contexts. Unrestricted speech is a prerequisite to democratic government - Glaser '92 Free speech is a pre-requisite to any rational moral system- without it self-realization is impossible. Eberle 94 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. Methodological pluralism is necessary for effective critique and is key to avoiding endless political violence in academia. Bleiker 14 Bleiker 14 - (6/17, Roland, Professor of International Relations at the University of Queensland, "International Theory Between Reification and Self-Reflective Critique," International Studies Review, Volume 16, Issue 2, pages 325-327). NS This book is part of an increasing trend of scholarly works that have embraced poststructural critique but want to ground it in more positive political foundations, while retaining a reluctance to return to the positivist tendencies that implicitly underpin much of constructivist research. The path that Daniel Levine has carved out is innovative, sophisticated, and convincing. A superb scholarly achievement. For Levine, the key challenge in international relations (IR) scholarship is what he calls “unchecked reification”: the widespread and dangerous process of forgetting “the distinction between theoretical concepts and the real-world things they mean to describe or to which they refer” (p. 15). The dangers are real, Levine stresses, because IR deals with some of the most difficult issues, from genocides to war. Upholding one subjective position without critical scrutiny can thus have far-reaching consequences. Following Theodor Adorno-who is the key theoretical influence on this book-Levine takes a post-positive position and assumes that the world cannot be known outside of our human perceptions and the values that are inevitably intertwined with them. His ultimate goal is to over- come reification, or, to be more precise, to recognize it as an inevitable aspect of thought so that its dangerous consequences can be mitigated. Levine proceeds in three stages: First he reviews several decades of IR theories to resurrect critical moments when scholars displayed an acute awareness of the dangers of reification. He refreshingly breaks down distinctions between conventional and progressive scholarship, for he detects self-reflective and critical moments in scholars that are usually associated with straightforward positivist positions (such as E.H. Carr, Hans Morgenthau, or Graham Allison). But Levine also shows how these moments of self-reflexivity never lasted long and were driven out by the compulsion to offer systematic and scientific knowledge. The second stage of Levine's inquiry outlines why IR scholars regularly closed down critique. Here, he points to a range of factors and phenomena, from peer review processes to the speed at which academics are meant to publish. And here too, he eschews conventional wisdom, showing that work conducted in the wake of the third debate, while explicitly post-positivist and critiquing the reifying tendencies of existing IR scholarship, often lacked critical self-awareness. As a result, Levine believes that many of the respective authors failed to appreciate sufficiently that “reification is a consequence of all thinking-including itself” (p. 68). The third objective of Levine's book is also the most interesting one. Here, he outlines the path toward what he calls “sustainable critique”: a form of self-reflection that can counter the dangers of reification. Critique, for him, is not just something that is directed outwards, against particular theories or theorists. It is also inward-oriented, ongoing, and sensitive to the “limitations of thought itself” (p. 12). The challenges that such a sustainable critique faces are formidable. Two stand out: First, if the natural tendency to forget the origins and values of our concepts are as strong as Levine and other Adorno-inspired theorists believe they are, then how can we actually recognize our own reifying tendencies? Are we not all inevitably and subconsciously caught in a web of meanings from which we cannot escape? Second, if one constantly questions one's own perspective, does one not fall into a relativism that loses the ability to establish the kind of stable foundations that are necessary for political action? Adorno has, of course, been critiqued as relentlessly negative, even by his second-generation Frankfurt School successors (from Ju€rgen Habermas to his IR interpreters, such as Andrew Link- later and Ken Booth). The response that Levine has to these two sets of legitimate criticisms are, in my view, both convincing and useful at a practical level. He starts off with depicting reification not as a flaw that is meant to be expunged, but as an a priori condition for scholarship. The challenge then is not to let it go unchecked. Methodological pluralism lies at the heart of Levine's sustainable critique. He borrows from what Adorno calls a “constellation”: an attempt to juxtapose, rather than integrate, different perspectives. It is in this spirit that Levine advocates multiple methods to understand the same event or phenomena. He writes of the need to validate “multiple and mutually incompatible ways of seeing” (p. 63, see also pp. 101-102). In this model, a scholar oscillates back and forth between different methods and paradigms, trying to understand the event in question from multiple perspectives. No single method can ever adequately represent the event or should gain the upper hand. But each should, in a way, recognize and capture details or perspectives that the others cannot (p. 102). In practical terms, this means combining a range of methods even when-or, rather, precisely when-they are deemed incompatible. They can range from poststructual deconstruction to the tools pioneered and championed by positivist social sciences. The benefit of such a methodological polyphony is not just the opportunity to bring out nuances and new perspectives. Once the false hope of a smooth synthesis has been abandoned, the very incompatibility of the respective perspectives can then be used to identify the reifying tendencies in each of them. For Levine, this is how reification may be “checked at the source” and this is how a “critically reflexive moment might thus be rendered sustainable” (p. 103). It is in this sense that Levine's approach is not really post-foundational but, rather, an attempt to “balance foundationalisms against one another” (p. 14). There are strong parallels here with arguments advanced by assemblage thinking and complexity theory-links that could have been explored in more detail. Our advocacy is that Public Colleges and Universities ought not restrict constitutionally protected Free Speech. Part 3 - Restrictions Fail One commentator has characterized the consequentialist considerations for freeing up some speech that might be suppressed because of two-step harms in the following way: First, being able to speak our minds makes us feel good. True, we tailor our words to civility, persuasion, kindness, or other purposes, but that is our choice. Censors claim the right to purge other people's talk - all the while insisting that it is for our own good. Second, much censorship appears irrational and alarmist in retrospect because the reasons people choose and use words are vastly more interesting than the systems designed to limit them. It's not hard to make a list of absurdities - I'm particularly fond of a rash of state laws that forbid the disparagement of agricultural products - but simplistic explanations and simple-minded responses are as dangerous as they are ditzy. In one of the few places that postmodern theory and common sense intersect, it is obvious that the meaning and perception of words regularly depend on such variables as speaker and spoken to, individual experience and shared history, and the setting, company, and spirit in which something is said. To give courts or other authorities the power to determine all this is, to put it mildly, mind-boggling. Third, censorship is inimical to democracy. Cloaking ideas and information in secrecy encourages ignorance, corruption, demagoguery, a corrosive distrust of authority, and a historical memory resembling Swiss cheese. Open discussion, on the other hand, allows verities to be examined, errors to be corrected, disagreement to be expressed, and anxieties to be put in perspective. It also forces communities to confront their problems directly, which is more likely to lead to real solutions than covering them up. Fourth, censorship backfires. Opinions, tastes, social values, and mores change over time and vary among people. Truth can be a protean thing. The earth's rotation, its shape, the origins of humankind, and the nature of matter were all once widely understood to be something different *719 from what we know today, yet those who challenged the prevailing faith were mocked and punished for their apostasy. Banning ideas in an attempt to make the world safe from doubt, disaffection, or disorder is limiting, especially for people whose lives are routinely limited, since the poor and politically weak are the censor's first targets. Finally, censorship doesn't work. It doesn't get rid of bad ideas or bad behavior. It usually doesn't even get rid of bad words, and history has shown repeatedly that banning the unpalatable merely drives it underground. It could be argued that that's just fine, that vitriolic or subversive speech, for example, shouldn't dare to speak its name. But hateful ideas by another name - disguised as disinterested intellectual inquiry, or given a nose job like Ku Klux Klansman David Duke before he ran for governor of Louisiana - are probably more insidious than those that are clearly marginal. n22 Let me close with a couple of examples. So-called hate speech - speech that disparages ethnic, racial, or religious groups - is generally prohibited in most Western countries but not in the United States, where it is constitutionally protected as a matter of freedom of speech. If we leave aside the one-step harm of offense and focus on the two-step harms of inciting others to violence or to discrimination against members of the disparaged groups, we can understand why some countries, given their history and culture, would be quite fearful of the effects hate speech might have. For example, think of Germany and anti-Semitic speech. On the other hand, in the twenty-first-century United States, the dangers of hate speech pale in comparison to the dangers of suppressing it. Suppression drives haters underground, where they may be more dangerous than if they were more visible. Suppression is frequently not evenhanded: disparagement of some favored groups is punished, but disparagement of other groups is not. Frequently, suppression of hate speech is an expression of power wielded by some groups over other groups rather than an expression of concern about violence or discrimination. Sometimes, suppression of hate speech is just partisan politics. In the United States, some groups have tried to label messages such as opposition to racial preferences as racist hate speech. And political correctness surely infects enforcement of hate speech laws. Consider the prosecution of Mark Steyn in British Columbia because of his book expressing political concerns over *720 the ever-increasing percentage of Muslims in Europe. n23 So whether hate speech laws are a good or bad thing will undoubtedly vary with the country, its history, its culture, and its politics. The same point can be made with respect to restrictions on culture-coarsening expression - pornography, violent video games, public profanity, and so forth. Culture coarsening is a real harm, and its baleful effects may even prove catastrophic. On the other hand, whether legal restrictions on expression that contributes to coarsening is a good idea will vary with the place, the time, the institutions, the current state of the culture, and so forth. Governments are generally pretty ham-fisted when it comes to defining culture-coarsening messages. The history in the United States of attempts to ban pornography is not reassuring. Other countries with other institutions may do a better job. O/w's - the most extreme examples of hate speech are already illegal and anything further kills dissent. . Rosenberg 91 B) Victimhood - Speech codes depoliticize students and teach them to go to authority rather than question it - restrictions lock in racial stereotypes and directly tradeoff with structural reform. Brown 01 Brown, Wendy. Politics out of History. Princeton University Press, 2001. The overwhelming response to these reflections, from my cultural¶ st udies colleagues ostensibly gathered for a day of critical self-reflection,¶ was glowering silence later broken by sotto voce hallway denunciations¶ of my presentation as "reactionary" and "collaborationist¶ with t he enemy." While attempting to articulate what I took to be¶ some th ing a pproximating a crisis in women 's stud.ies, I had broken the¶ the taboo against calling into question the instituionaiation of critical political moments inside and outside the academy. The punishment for this breach was moralism at its finest: to reproach the questioning¶ and the questioner as politically heinous, hence also intellectually unworthy.¶ "Speech codes kill critique, " Henry Louis Gates remarked in a 1 993¶ essay on hate speech.14 Although Gates was referring to what happens¶ when hate speech regulations, and the debates about them, usurp the¶ discursive space in which one might have offered a substantive political¶ response to bigoted epithets, his point also applies to prohibitions¶ against questioning from within selected political practices or institutions.¶ But turning political questions into moralistic ones-as speech¶ codes of any sort do-not only prohibits certain questions and mandates¶ certain genuflections, it also expresses a profound hostility toward¶ political life insofar as it seeks to preempt argument with a legislated¶ and enforced truth. And the realization of that patently¶ undemocratic desire can only and always convert emancipatory aspirations¶ into reactionary ones. Indeed, it insulates those aspirations¶ from questioning at the very moment that Weberian forces of rationalization¶ and bureaucratization are quite likely to be domesticating¶ them from another direction. Here we greet a persistent political paradox:¶ the moralistic defense of critical practices, or of any besieged¶ identity, weakens what it strives to fortify precisely by sequestering¶ those practices from the kind of critical inquiry out of which they¶ were born. Thus Gates might have said, "Speech codes, born of social¶ critique, kill critique." And, we might add, contemporary identity based¶ institutions, born of social critique, invariably become conservative¶ as they are forced to essentialize the identity and naturalize the¶ boundaries of what they once grasped as a contingent effect of historically¶ specific social powers.¶ But moralistic reproaches to certain kinds of speech or argument¶ kill critique not only by displacing it with arguments about abstract¶ rights versus identity-bound injuries, but also by configuring political¶ inj ustice and political righteousness as a problem of remarks, attitude,¶ a nd speech rather than as a matter of historical, political-economic,¶ and cultu ral format ion of power. Rather than offering analytically substantive accounts of the forces of injustice or injury, they condemn the manifestation of these forces in particular remarks or events. There is, in the inclination to ban (formally or informally) certain utterances¶ and to mandate others, a politics of rhetoric and gesture that itself¶ symptomizes despair over effecting change at more significant levels.¶ As vast quantities of left and liberal attention go to determining what¶ socially marked individuals say, how they are represented, and how¶ many of each kind appear in certain institutions or are appointed to¶ various commissions, the sources that generate racism, poverty, violence¶ against women, and other elements of social injustice remain¶ relatively unarticulated and unaddressed. We are lost as how to address¶ those sources; but rather than examine this loss or disorientation,¶ rather than bear the humiliation of our impotence, we posture¶ as if we were still fighting the big and good fight in our clamor over¶ words and names. Don't mourn, moralize.¶ But here the problem goes well beyond superficiality of political¶ analysis or compensatory gestures in the face of felt impotence. A moralistic,¶ gestural politics often inadvertently becomes a regressive politics.¶ Moralizing condemnation of the National Endowment for the¶ Arts for not funding politically radical art, of the U.S. military or the¶ White House for not embracing open homosexuality or sanctioning¶ gay marriage, or even of the National Institutes of Health for not treating¶ as a political priority the lives of HIV target populations (gay men,¶ prostitutes, and drug addicts) conveys at best naive political expectations¶ and at worst, patently confused ones. For this condemnation¶ implicitly figures the state (and other mainstream institutions) as if it¶ did not have specific political and economic investments, as if it were ·.,¶ not the codification of various dominant social powers, but was,¶ rather, a momentarily misguided parent who forgot her promise to¶ treat all her children the same way. These expressions of moralistic¶ outrage implicitly cast the state as if it were or could be a deeply democratic¶ and nonviolent institution; conversely, it renders radical art, radical¶ social movements, and various fringe populations as if they were¶ not potentially subversive, representing a significant political challenge¶ to the norms of the regime, but rather were benign entities and¶ populations entirely appropriate for the state to equally protect, fund ,¶ and promote. Here, moralism's objection ot politics as a domain of power and history rather than principle is not simply irritating: it results in a troubling and confused political stance. It misleads about the nature of power, the state, and capitalism; it misleads about the nature of oppressive social forces, and about the scope of the project¶ of transformation required by serious ambitions for justice. Such obfuscation¶ is not the aim of the moralists but falls within that more¶ general package of displaced effects consequent to a felt yet unacknowledged¶ impotence. It signals disavowed despair over the prospects¶ for more far-reaching transformations C) Counterspeech is effective and empowers students Majeed '09 | 4/9/17 |
NovDec - 4th Amendment ACTournament: Damus | Round: 2 | Opponent: XX | Judge: XX Adorno, Theodor. “Education after Auschwitz,” Critical Model Since the possibility of changing the objective—namely societal and political— conditions is extremely limited today, attempts to work against the repetition of Auschwitz are necessarily restricted to the subjective dimension. By this I also mean essentially the psychology of people who do such things. I do not believe it would help much to appeal to eternal values, at which the very people who are prone to commit such atrocities would merely shrug their shoulders. I also do not believe that enlightenment about the positive qualities possessed by persecuted minorities would be of much use. The roots must be sought in the persecutors, not in the victims who are murdered under the paltriest of pretenses. What is necessary is what I once in this respect called the turn to the subject. One must come to know the mechanisms that render people capable of such deeds, must reveal these mechanisms to them, and strive, by awakening a general awareness of those mechanisms, to prevent people from becoming so again. It is not the victims who are guilty, not even in the sophistic and caricatured sense in which still today many like to construe it. Only those who unreflectingly vented their hate and aggression upon them are guilty. One must labor against this lack of reflection, must dissuade people from striking outward without reflecting upon themselves. The only education that has any sense at all is an education toward critical self-reflection. But since according to the findings of depth psychology, all personalities, even those who commit atrocities in later life, are formed in early childhood, education seeking to prevent the repetition must concentrate upon early childhood. I mentioned Freud’s thesis on discontent in culture. Yet the phenomenon extends even further than he understood it, above all, because the pressure of civilization he had observed has in the meantime multiplied to an unbearable degree. At the same time the explosive tendencies he first drew attention to have assumed a violence he could hardly have foreseen. The discontent in culture, however, also has its social dimension, which Freud did not overlook though he did not explore it concretely. One can speak of the claustrophobia of humanity in the administered world, of a feeling of being incarcerated in a thoroughly societalized, closely woven, netlike environment. The denser the weave, the more one wants to escape it, whereas it is precisely its close weave that prevents any escape. This intensifies the fury against civilization. The revolt against it is violent and irrational. A pattern that has been confirmed throughout the entire history of persecutions is that the fury against the weak chooses for its target especially those who are perceived as societally weak and at the same time—either rightly or wrongly—as happy. Sociologically, I would even venture to add that our society, while it integrates itself ever more, at the same time incubates tendencies toward disintegration. Lying just beneath the surface of an ordered, civilized life, these tendencies have progressed to an extreme degree. The pressure exerted by the prevailing universal upon everything particular, upon the individual people and the individual institutions, has a tendency to destroy the particular and the individual together with their power of resistance. With the loss of their identity and power of resistance, people also forfeit those qualities by virtue of which they are able to pit themselves against what at some moment might lure them again to commit atrocity. Perhaps they are hardly able to offer resistance when the established authorities once again give them the order, so long as it is in the name of some ideal in which they half or not at all believe. When I speak of education after Auschwitz, then, I mean two areas: first children’s education, especially in early childhood; then general enlightenment that provides an intellectual, cultural, and social climate in which a recurrence would no longer be possible, a climate, therefore, in which the motives that led to the horror would become relatively conscious. Naturally, I cannot presume to sketch out the plan of such an education even in rough outline. Yet I would like at least to indicate some of its nerve centers. Often, for instance, in America, the characteristic German trust in authority has been made responsible for National Socialism and even for Auschwitz. I consider this explanation too superficial, although here, as in many other European countries authoritarian behavior and blind authority persist much more tenaciously than one would gladly admit under the conditions of a formal democracy. Rather, one must accept that fascism and the terror it caused are connected with the fact that the old established authorities of the Kaiserreich decayed and were toppled, while the people psychologically were not yet ready for self-determination. They proved to be unequal to the freedom that fell into their laps. For this reason the authoritarian structures then adopted that destructive and, if I may put it so, insane dimension they did not have earlier, or at any rate had not revealed. If one considers how visits of potentates who no longer have any real political function induce outbreaks of ecstasy in entire populations, then one has good reason to suspect that the authoritarian potential even now is much stronger than one thinks. I wish, however, to emphasize especially that the recurrence or non-recurrence of fascism in its decisive aspect is not a question of psychology, but of society. I speak so much of the psychological only because the other, more essential aspects lie so far out of reach of the influence of education, if not of the intervention of individuals altogether. Very often well-meaning people, who don’t want it to happen again, invoke the concept of bonds. According to them, the fact that people no longer had any bonds is responsible for what took place. In fact, the loss of authority, one of the conditions of the sadistic-authoritarian horror, is connected with this state of affairs. To normal common sense it is plausible to appeal to bonds that check the sadistic, destructive, and ruinous impulse with an emphatic “You must not.” Nevertheless I consider it an illusion to think that the appeal to bonds—let alone the demand that everyone should again embrace social ties so that things will look up for the world and for people— would help in any serious way. One senses very quickly the untruth of bonds that are required only so that they produce a result—even if it be good—without the bonds being experienced by people as something substantial in themselves. It is surprising how swiftly even the most foolish and naive people react when it comes to detecting the weaknesses of their betters. The so-called bonds easily become either a ready badge of shared convictions—one enters into them to prove oneself a good citizen—or they produce spiteful resentment, psychologically the opposite of the purpose for which they were drummed up. They amount to heteronomy, a dependence on rules, on norms that cannot be justified by the individual’s own reason. What psychology calls the superego, the conscience, is replaced in the name of bonds by external, unbinding, and interchangeable authorities, as one could observe quite clearly in Germany after the collapse of the Third Reich. Yet the very willingness to connive with power and to submit outwardly to what is stronger, under the guise of a norm, is the attitude of the tormentors that should not arise again. It is for this reason that the advocacy of bonds is so fatal. People who adopt them more or less voluntarily are placed under a kind of permanent compulsion to obey orders. The single genuine power standing against the principle of Auschwitz is autonomy, if I might use the Kantian expression: the power of reflection, of self-determination, of not cooperating. I once had a very shocking experience: while on a cruise on Lake Constance I was reading a Baden newspaper, which carried a story about Sartre’s play Morts sans s ´epulchre, a play that depicts the most terrifying things.3 Apparently the play made the critic uneasy. But he did not explain this discontent as being caused by the horror of the subject matter, which is the horror of our world. Instead he twisted it so that, in comparison with a position like that of Sartre, who engages himself with the horror, we could maintain—almost maintain, I should say—an appreciation of the higher things: so that we could not acknowledge the senselessness of the horror. To the point: by means of noble existential cant the critic wanted to avoid confronting the horror. Herein lies, not least of all, the danger that the horror might recur, that people refuse to let it draw near and indeed even rebuke anyone who merely speaks of it, as though the speaker, if he does not temper things, were the guilty one, and not the perpetrators. With the problem of authority and barbarism I cannot help thinking of an idea that for the most part is hardly taken into account. It comes up in an observation in the book The SS State by Eugen Kogon, which contains central insights into the whole complex and which hasn’t come near to being absorbed by science and educational theory the way it deserves to be.4 Kogon says that the tormentors of the concentration camp where he spent years were for the most part young sons of farmers. The cultural difference between city and country, which still persists, is one of the conditions of the horror, though certainly neither the sole nor the most important one. Any arrogance toward the rural populace is far from my intentions. I know that one cannot help having grown up in a city or a village. I note only that probably debarbarization has been less successful in the open country than anywhere else. Even television and the other mass media probably have not much changed the state of those who have not completely kept up with the culture. It seems to me more correct to say this and to work against it than to praise sentimentally some special qualities of rural life that are threatening to disappear. I will go so far as to claim that one of the most important goals of education is the debarbarization of the countryside. This presupposes, however, a study of the conscious and unconscious of the population there. Above all, one must also consider the impact of modern mass media on a state of consciousness that has not yet come anywhere close to the state of bourgeois liberal culture of the nineteenth century. In order to change this state of consciousness, the normal primary school system, which has several problems in the rural environment, cannot suffice. I can envision a series of possibilities. One would be—I am improvising here—that television programs be planned with consideration of the nerve centers of this particular state of consciousness. Then I could imagine that something like mobile educational groups and convoys of volunteers could be formed, who would drive into the countryside and in discussions, courses, and supplementary instruction attempt to fill the most menacing gaps. I am not ignoring the fact that such people would make themselves liked only with great difficulty. But then a small circle of followers would form around them, and from there the educational program could perhaps spread further. However, there should arise no misunderstanding that the archaic tendency toward violence is also found in urban centers, especially in the larger ones. Regressive tendencies, that is, people with repressed sadistic traits, are produced everywhere today by the global evolution of society. Here I’d like to recall the twisted and pathological relation to the body that Horkheimer and I described in The Dialectic of Enlightenment. Everywhere where it is mutilated, consciousness is reflected back upon the body and the sphere of the corporeal in an unfree form that tends toward violence. One need only observe how, with a certain type of uneducated person, his language—above all when he feels faulted or reproached—becomes threatening, as if the linguistic gestures bespoke a physical violence barely kept under control. Here one must surely also study the role of sport, which has been insufficiently investigated by a critical social psychology. Sport is ambiguous. On the one hand, it can have an anti-barbaric and anti-sadistic effect by means of fair play, a spirit of chivalry, and consideration for the weak. On the other hand, in many of its varieties and practices it can promote aggression, brutality, and sadism, above all in people who do not expose themselves to the exertion and discipline required by sports but instead merely watch: that is, those who regularly shout from the sidelines. Such an ambiguity should be analyzed systematically. To the extent that education can exert an influence, the results should be applied to the life of sport. All this is more or less connected with the old authoritarian structure, with modes of behavior, I could almost say, of the good old authoritarian personality. But what Auschwitz produced, the characteristic personality types of the world of Auschwitz, presumably represents something new. On the one hand, those personality types epitomize the blind identification with the collective. On the other hand, they are fashioned in order to manipulate masses, collectives, as Himmler, H¨oss, and Eichmann did. I think the most important way to confront the danger of a recurrence is to work against the brute predominance of all collectives, to intensify the resistance to it by concentrating on the problem of collectivization. That is not as abstract as it sounds in view of the passion with which especially young and progressively minded people desire to integrate themselves into something or other. One could start with the suffering the collective first inflicts upon all the individuals it accepts. One has only to think of one’s own first experiences in school. One must fight against the type of folkways Volkssitten, initiation rites of all shapes, that inflict physical pain—often unbearable pain—upon a person as the price that must be paid in order to consider oneself a member, one of the collective.6 The evil of customs such as the Rauhn¨achte and the Haberfeldtreiben and whatever else such long-rooted practices might be called is a direct anticipation of National Socialist acts of violence.7 It is no coincidence that the Nazis glorified and cultivated such monstrosities in the name of “customs.” Science here has one of its most relevant tasks. It could vigorously redirect the tendencies of folk-studies Volkskunde that were enthusiastically appropriated by the Nazis in order to prevent the survival, at once brutal and ghostly, of these folk-pleasures. This entire sphere is animated by an alleged ideal that also plays a considerable role in the traditional education: the ideal of being hard. This ideal can also, ignominiously enough, invoke a remark of Nietzsche, although he truly meant something else.8 I remember how the dreadful Boger during the Auschwitz trial had an outburst that culminated in a panegyric to education instilling discipline through hardness. He thought hardness necessary to produce what he considered to be the correct type of person.9 This educational ideal of hardness, in which many may believe without reflecting about it, is utterly wrong. The idea that virility consists in the maximum degree of endurance long ago became a screen-image for masochism that, as psychology has demonstrated, aligns itself all too easily with sadism. Being hard, the vaunted quality education should inculcate, means absolute indifference toward pain as such. In this the distinction between one’s own pain and that of another is not so stringently maintained. Whoever is hard with himself earns the right to be hard with others as well and avenges himself for the pain whose manifestations he was not allowed to show and had to repress. This mechanism must be made conscious, just as an education must be promoted that no longer sets a premium on pain and the ability to endure pain. In other words: education must take seriously an idea in no wise unfamiliar to philosophy: that anxiety must not be repressed. When anxiety is not repressed, when one permits oneself to have, in fact, all the anxiety that this reality warrants, then precisely by doing that, much of the destructive effect of unconscious and displaced anxiety will probably disappear. People who blindly slot themselves into the collective already make themselves into something like inert material, extinguish themselves as self-determined beings. With this comes the willingness to treat others as an amorphous mass. I called those who behave in this way “the manipulative character” in the Authoritarian Personality, indeed at a time when the diary of H¨oss or the recordings of Eichmann were not yet known.10 My descriptions of the manipulative character date back to the last years of the Second World War. Sometimes social psychology and sociology are able to construct concepts that only later are empirically verified. The manipulative character—as anyone can confirm in the sources available about those Nazi leaders—is distinguished by a rage for organization, by the inability to have any immediate human experiences at all, by a certain lack of emotion, by an overvalued realism. At any cost he wants to conduct supposed, even if delusional, Realpolitik. He does not for one second think or wish that the world were any different than it is, he is obsessed by the desire of doing things Dinge zu tun, indifferent to the content of such action. He makes a cult of action, activity, of so-called efficiency as such which reappears in the advertising image of the active person. If my observations do not deceive me and if several sociological investigations permit generalization, then this type has become much more prevalent today than one would think. What at that time was exemplified in only a few Nazi monsters could be confirmed today in numerous people, for instance, in juvenile criminals, gang leaders, and the like, about whom one reads in the newspapers every day. If I had to reduce this type of manipulative character to a formula—perhaps one should not do it, but it could also contribute to understanding—then I would call it the type of reified consciousness. People of such a nature have, as it were, assimilated themselves to things. And then, when possible, they assimilate others to things. This is conveyed very precisely in the expression “to finish off” “fertigmachen”, just as popular in the world of juvenile rowdies as in the world of the Nazis. This expression defines people as finished or prepared things in a doubled sense. According to the insight of Max Horkheimer, torture is a manipulated and somewhat accelerated adaptation of people to collectives.11 There is something of this in the spirit of the age, though it has little to do with spirit. I merely cite the saying of Paul Val ´ery before the last war, that inhumanity has a great future.12 It is especially difficult to fight against it because those manipulative people, who actually are incapable of true experience, for that very reason manifest an unresponsiveness that associates them with certain mentally ill or psychotic characters, namely schizoids. Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70. Moreover, we cannot respond adequately to problems faced in life by¶ generating abstract moral categories. Discussion of moral and legal choices¶ must focus on the rich context in which those problems occur. For some¶ purposes, it may be useful to characterize two persons as "employer" and¶ "employee" and to develop generalizations to describe and govern their¶ relationships. But it is important to remember that these are real people¶ we are talking about, and when we describe them in this way for the¶ purpose of judging what their relations should be like, we are closing our-¶ selves off from their actual life experiences. We can think impersonally¶ about a busboy as simply representing the table-clearing function; or we¶ can describe him, say, as a forty-year-old man, recently divorced, with¶ back trouble and money problems. As Robert Gordon argues, we need "to¶ unfreeze the world as it appears to common sense as a bunch of more or¶ less objectively determined social relations and to make it appear as (we¶ believe) it really is: people acting, imagining, rationalizing, justifying."'179¶ It may indeed be useful to develop general models to describe social life.¶ But when it comes time to make decisions, we should recognize that we¶ are making decisions rather than discovering ourselves. In making those¶ decisions, it is right to focus on the particular social context, to decide¶ whether our descriptive model actually applies in that case and whether¶ we are allowing the model to turn our attention away from facts that we¶ would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding¶ how to characterize situations, and in deliberating, conversing, intro-¶ specting, and judging.180 Expressive theory also emphasizes the communal¶ nature of theory and its complex relations with social life. The kernel of¶ truth in the idea of rational consensus is that all ideas and actions involve¶ relations among people. "Individuals do not simply 'have' opinions, they¶ form opinions. . . . The formation of opinions is not a private activity¶ performed by a solitary thinker."'' Traditional theorists have reified the¶ idea of rational consensus by treating it as a basis for what we do, as a¶ source of answers, as a generator of outcomes. But consensus, if it exists,¶ is not something that just happens to be there, that we could describe¶ accurately. It must be created, and the work of creating it is the work and¶ play of daily life, of living, contending, sharing, and being with other peo-¶ ple. Like law, consensus must be made, not found.182¶ Emphasis on the creative, communal nature of common understanding¶ creates an appropriate relationship between thought and action. The proc-¶ ess of generating values is something we do with others in the context of¶ relationships that continue over time.¶ Democratic politics is an encounter among people with differing in-¶ terests, perspectives, and opinions-an encounter in which they re-¶ consider and mutually revise opinions and interests, both individual¶ and common. It happens always in a context of conflict, imperfect¶ knowledge, and uncertainty, but where community action is neces-¶ sary. The resolutions achieved are always more or less temporary,¶ subject to reconsideration, and rarely unanimous. What matters is¶ not unanimity but discourse. The substantive common interest is¶ only discovered or created in democratic political struggle, and it re-¶ mains contested as much as shared. Far from being inimical to de-¶ mocracy, conflict-handled in democratic ways, with openness and¶ persuasion-is what makes democracy work, what makes for the¶ mutual revision of opinions and interest.'83¶ Legal theory can help create communal ties and shared values by freeing¶ us from the sense that current practices and doctrines are natural and¶ necessary and by suggesting new forms of expression to replace outworn¶ ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our¶ focus from viewing individuals as abstract citizens whose relations to each¶ other are governed by rights enforced by the state to viewing them as¶ active participants in shaping their relations in daily life. Such changes in¶ language may help focus our attention on facts we had previously ignored¶ and make us more keenly aware of alternative social arrangements.'85 Part 2 – The Police State Qualified immunity makes questions of civil rights irrelevant. It shuts down democratic debates about which rights we should value and prevents forms of activism that fight for legal recognition. Hassel ‘99 Diana Hassel - Associate Professor, Roger Williams University School of Law. B.A. 1979, Mount Holyoke College; J.D. 1985, Rutgers, the State University of New JerseyNewark. “Living a Lie: The Cost of Qualified Immunity.” Missouri Law Review. Winter 1999. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402andcontext=mlr JJN IV. THE COST OF QUALIFIED IMMUNITY Qualified immunity has not been universally admired. A large body of literature critiques the defense and calls for its modification, elimination, or expansion. While these critiques serve to illuminate some fundamental problems with the qualified immunity doctrine, they do not address the central problem with qualified immunity-its camouflaging effect. By camouflaging effect, I mean the ability of qualified immunity to make the underlying pattern of civil. rights doctrine undiscernible. The existing critical focus on the strengths and weaknesses of qualified immunity fails to uncover the underlying patterns in the availability of Section 1983 remedies. A. Current Critiques There are vociferous critics of the qualified immunity doctrine who attack the doctrine as a whole. This commentary suggests that the problem with the qualified immunity doctrine is that it is applied to the wrong group of defendants or that it should be eliminated entirely. Those who believe that it should be eliminated entirely generally seek to substitute governmental liability for that of individual government officials. 6 Others believe that the problem is not with the defense but that its application should be available only to a certain small group of government officials." 7 The bulk of the criticism of qualified immunity looks closely at the structure of the defense and argues that it is internally contradictory or should be modified to provide better results. This criticism breaks into two main areas: the problems inherent in the "reasonableness" element". of the qualified immunity defense and the difficulties that result from the attempt to define "clearly established""' 9 law. The complaints concerning the "reasonableness" element note that while the objective reasonableness element is designed to protect the defendant from protracted litigation, the defense does not really quickly resolve a lawsuit. 120 The fact issues raised by the reasonableness element of the defense require a fact-finding hearing which makes it difficult to end lawsuits prior to trial.' 2 ' In a contradictory approach, the objectively reasonable element also has been described as being essentially a bar to judgment for the plaintiff in a civil rights action. Because qualified immunity is designed to protect defendants notjust from liability, but from participation in litigation, some argue that qualified immunity has become essentially indistinguishable from absolute immunity.' 22 The objectively reasonable standard is also seen as a mechanism for the distortion of constitutional law. The focus on the question of what a reasonable official would have understood the law to require leads to a "redefining of the substantive constitutional law" in a way that gives little clear guidance as to what the constitution requires and thus provides little guidance for future actions.'23 Commentators similarly claim that the impact of the clearly established element of the qualified immunity defense is inefficient, distorts the law, and is too difficult a standard for plaintiffs to overcome. It is inefficient and distorting because courts spend their time reconstructing what the law was in the past rather than setting forth clear guidance as to what the law requires. 124 The qualified immunity defense has also been assailed because of its requirement that a constitutional right must be clearly established before any liability can attach. This is a difficult standard to overcome. 2 ' The difficulty in identifying clear legal authority establishing the unlawfulness of a particular official's act may be too difficult a task and thus exclude meritorious claims. 26 There is then a body of literature examining the discrepancy between what the qualified immunity defense was meant to accomplish and how it actually works. The defense does not protect defendants in a meaningful way. At the same time, it makes a judgment for the plaintiff almost impossible to obtain. Therefore, the defense seems to be serving no one's interests. These well documented weaknesses suggest that qualified immunity's role is not to allow for just outcomes, but to provide some other service. What is missing from these critiques is an analysis of what function the current doctrine serves. In the next section, I explain that while qualified immunity often results in unfairness or inefficiency, the doctrine also provides a flexible mechanism by which divisive issues are seemingly resolved. This mechanism, however, has a cost. B. Qualified Immunity as a Disquise The problem with qualified immunity is not so much that the outcomes are sometimes unfair but the fact that qualified immunity blocks a clear view of the real limitations that exist in civil rights law. Civil rights law is, in effect, being designed in the dark. Distinctions are being made about the types of cases that will receive compensation and the types that will not. These distinctions are not articulated as such; instead, the results are understood to be the result of the qualified immunity defense. As we have seen, for example, a procedural complaint in the context of an employment dispute is more likely to survive the qualified immunity defense than is a complaint about whether a police officer used excessive force in the arrest of a dangerous suspect. Rather than organizing civil rights law in these categorical ways, however, qualified immunity makes the civil rights remedial system appear to be about individual cases and the reasonableness of individual defendants. Current qualified immunity doctrine serves as a means to diffuse conflict. Without a clear rule that some kinds of civil rights harms will not be redressed, there is minimal pressure for change. This "hiding of the ball" quality of qualified immunity is why, in spite of many expressions of dissatisfaction with the system, there had been little effective rallying for change. The reason the discontent of the participants in this system has not led to a significant change is that the terms of the debate are defined by the immunity system rather than by the fundamental question of the extent of rights and liabilities in civil rights actions. The civil rights remedial scheme organized around qualified immunity thus has an inherently self-preserving or stabilizing quality. It allows for tinkering at the margins, but fundamental recasting of the terms of the debate is unlikely. My assertion that qualified immunity has a camouflaging effect on civil rights law is supported by a large body of scholarship that explores legal regimes that define reality in a way that limits the ability of the participants in the system to change it.'27 These scholars argue that when a legal system is accepted as being the only available way to organize an activity and thus seems inevitable, the legal system encourages acceptance of the status quo. 28 The insights gained by scholars working in this area are helpful to apply to the qualified immunity standard in order to explore its hold on the civil rights imagination. This analysis maps out the way a doctrine such as qualified immunity can develop into an obstacle to the very aims it professes to accomplish. Particularly apposite to an analysis of civil rights law is the work that has been done on the change-inhibiting impact of the development of antidiscrimination law.129 In commenting on the effect of the adoption of equal rights rhetoric on the struggle to end racial inequality, Kimberle Crenshaw has concluded that "society's adoption of the ambivalent rhetoric of equal opportunity law has made it that much more difficult for Black people to name their reality. While equal employment opportunity law has been adopted, the material reality of most Black people has not improved."'30 In fact, improvement may be hindered by the existence of the equal opportunity law since it may undermine the political consensus necessary for change.' 3 ' Another commentator has suggested that "the language of rights undermines efforts to change things by absorbing real demands, experiences, and concerns into a vacuous and indeterminate discourse. The discourse abstracts real experience and clouds the ability of those who invoke rights rhetoric to think concretely about real confrontations and real circumstances.' 32 The existence of antidiscrimination law can thus create the appearance of improvements in racial equality while at the same time not encouraging fundamental change. 33 The focus on the intent of the actor in equal protection claims rather than the impact on the person experiencing the discrimination has also been criticized as an inhibitor to the elimination of racial inequality. 3 By paying exclusive attention to the blameworthiness of the defendant, an examination of the impact of the challenged practice on those complaining about it is lost. Fairness to the defendant, rather than eliminating discriminatory effect, is the central concern. These commentators suggest that the economic and social reality of race inequality is obscured by the existence of antidiscrimination law and by the success of a small exceptional group. As Derrick Bell has stated, "Discrimination claims when they are dramatic enough and do not threaten majority concerns, are given a sympathetic hearing, but there is a pervasive sense that definite limits have been set on the weight that minority claims receive when balanced against majority interests."'35 While it is unclear what the alternative to antidiscrimination law is, these critiques strongly argue that antidiscrimination law does not do what it suggests it will do and may, in fact, make a better system more difficult to imagine and thus to create. This current critique of antidiscrmination law can be used to understand how the qualified immunity standard affects the system of compensation for constitutional wrongs. One major similarity is the way in which the existence of Section 1983 siphons off pressure to create some other system of redress. The open-ended language of the Section 1983 statute seems to promise a powerful remedy against governmental abuse. As we have seen, qualified immunity severely limits that remedy, but on a case-by-case basis. There is no general prohibition against certain types of civil rights claims, only the seemingly individualized application of the qualified immunity defense. The fact that some types of claims are destined to fail because of the type of claim they are, not because of the particularized behavior of the defendant, is hidden. Adding to the illusion of a generally available remedy is the spectacular success of a few high profile cases. A few large recoveries in cases that present particularly compelling facts obscure the reality of the fruitlessness of most claims. 36 On the other side of the lawsuit, qualified immunity promises much more to the defendant than it delivers. The defense is supposed to protect government actors not only from liability but also from entanglement with litigation. The promise is often not kept because the qualified immunity defense presents a combination of fact and law questions that cannot be quickly disposed of prior to trial. However, the theoretical protection offered by the defense and the low incidence of actual judgments against government actors lulls government employees into acquiescence to the system. The emphasis that qualified immunity places on the reasonableness of the defendant's actions rather than on whether a constitutional right was violated is another way in which qualified immunity distorts civil rights law. Qualified immunity makes the essential issue of a civil rights claim the question of whether it would be too much of an inhibitor of government action to require a particular defendant to pay damages to the plaintiff. The focus is not, at least initially, on whether the plaintiffs constitutional rights were violated. This emphasis also makes it difficult to discern and consider which rights are or should be protected and which we are content not to protect with monetary compensation. Qualified immunity's harm is that it makes it difficult to see the policy choices made by courts in civil rights actions. Cloaking these policy choices in the qualified immunity doctrine avoids the possibility of an open debate concerning which civil rights should be protected and how. VI. CONCLUSION Given its obvious flaws, the continuation of qualified immunity as the key legal issue in civil rights cases can only be explained by the hidden purpose it serves; it avoids the divisive and perhaps unresolvable conflicts among participants in civil rights litigation. Qualified immunity accomplishes this conflict-avoiding function by giving judges wide latitude in making determinations about its application and by couching the outcomes of civil rights litigation in terms that make the substantive results difficult to perceive. These qualities account for the faithful adherence to a doctrine that is regarded as so unsatisfactory to so many. The problem with this conflict avoidance mechanism is that it allows unarticulated decisions to be made about the extent of liability for civil rights violations. Civil rights litigation does have limitations to it; every case is not given an opportunity to succeed. These determinations are being made; they are just not described as such. Using qualified immunity as a shield from the truth may buy us peace, but it keeps from us the tools required for reform. Excessive force is the worst manifestation of this form of structural violence – 4th amendment cases get shut down before they even have a chance. Jeffries ‘13 Jeffries Jr, John C - David and Mary Harrison Distinguished Professor of Law, the University of Virginia. "The Liability Rule for Constitutional Torts." Virginia Law Review (2013): 207-270. The AFF changes police behavior – lawsuits are used by departments to create reform and individuals know their behavior will be watched – they don’t’ even need to win the lawsuits. Schwartz 10 The AFF changes culture – it is a form of social condemnation that validates the claims of the survivor. Armacost 98 Armacost 98 Barbara Armacost, Vanderbilt Law Review, April, 1998, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=90852, “Qualified Immunity: Ignorance Excused,” WP If constitutional rights are especially valued in comparison with other kinds of rights, it follows that constitutional violations would be viewed by society as especially serious and deserving of opprobrium. There is reason to think this is so. Constitutional violations, especially those that are likely to give rise to section 1983 suits, involve abuses of power by governmental actors. The implications of official misconduct go far beyond the concrete harm to persons or property suffered by any one individual. Public officials are, after all, charged with upholding and enforcing the law and acting for the public good. When officials use their public offices to engage in lawbreaking, there is a betrayal of trust that is experienced not only by the individual, but by the entire community. n432 Consider, for example, *675 the public outcry that was engendered by the beating of Rodney King by Los Angeles police officers. The image of a circle of uniformed law enforcement officials beating an unarmed man lying crumpled on the ground is troubling in a way that a private beating is not. Similar reactions accompanied recent allegations that New York City police officers openly beat and sodomized (with a toilet plunger) a young Haitian immigrant in the bathroom at the police station. n433 When the malefactor is a governmental official whose injurious conduct was made possible by her official authority and position, "ordinary injury is augmented by the abuse of governmental power." n434 In such cases wrongdoing that could "be described as trespass, assault and battery, false imprisonment, or defamation takes on new urgency." n435 If the law-enforcers cannot be trusted to conduct themselves according to the law, then who can? Governmental abuse of power creates a sense of indignation on the part of the governed, and special opprobrium is reserved for abusers of the public trust. n436∂ If individual liability for constitutional violations entails wrongdoing and signals societal condemnation, then it would make sense to retain such liability even if the financial burden is ultimately borne by the governmental employer rather than by the individual official. n437 Indeed, in the criminal context it has been argued that the *676 moral blame entailed by a criminal conviction is more important in discouraging antisocial conduct than the threat of official sanctions. n438 One need not go that far to accept that the human desire to avoid societal opprobrium plays an important role in gaining compliance with the criminal law. n439 Similarly, the societal condemnation accompanying damages liability for constitutional violations enhances the law's power to reduce unconstitutional conduct and reinforce constitutional norms. Moreover, the stigma entailed in such liability plays an important role in communicating those norms, not only through final verdicts in courts but through public reaction to reported allegations of clear constitutional impropriety. The plan fosters cooperation, which operates as a key check against police departments. Stefan ‘16 And, police won’t give up on policing – they will just change their behavior. The AFF forces de-escalation. Oliver 15 Unnecessary police killings may be deterred by internal department sanctions, state torts, civil rights actions, state homicide prosecutions, and federal civil rights prosecutions. Each of these potential sanctions ultimately turns on some version of a reasonableness standard that provides little in the way of details about when police are allowed to use deadly force. For all the possible penalties other than internal departmental sanctions, jurors or grand jurors must decide without the benefit of any sort of precedent.5 Using these mechanisms, courts have done virtually nothing to define the contours of the reasonableness standard that governs official uses of force.6 Further, courts have aggressively shielded officers from civil liabil- ity.7 The bulk of claims against police officers for excessive force are litigated in federal civil rights actions.8 Litigants must contend not only with a vague reasonableness standard when the case goes to a jury, but they must also overcome an officer’s qualified immunity defense.9 Qualified immunity is designed to ensure that police will not be over-deterred through the threat of a large jury verdict.10 Courts ruling on this defense at the summary judgment phase have been very deferential to what courts frequently describe as the split-second decision to use force.11 The vague reasonableness standard is thus only defined by courts in the context of the police-friendly qualified immunity context, which essentially leaves reasonableness to be defined by officers.12 The absence of clarity is problematic for officers attempting to comply with the law and for those who must judge officers’ conduct. With little guidance, through precedent or otherwise, to define reasonableness, officers are not sure when they have a duty to de-escalate a potentially violent encounter.13 Grand jurors judging officers’ conduct are similarly unable to determine when an officer’s course of conduct has been unreasonable. Decisions to charge or not charge officers are thus often criticized as the product of racial bias, rather than sound judgment, as only vague standards govern their considerations.14 By contrast, relatively clear standards govern police searches to discover evidence. The famed Supreme Court of California Justice Roger J. Traynor, who introduced the exclusionary rule into California jurisprudence, observed that as a result of the rule, “police now have a clearer idea than before of the restraints upon them.”15 The exclusionary rule has given a large number of defendants a reason to assert that police engaged in misconduct in gathering evidence.16 In each of these cases, a judge is required to rule on the admissibility of the challenged evidence and provide reasons that inform future po-l’ lice conduct, as well as subsequent judicial decisions.17 The frequency of Fourth Amendment litigation has provided courts an opportunity to address the contours of most investigative techniques | 11/6/16 |
NovDec - Rule of Law ACTournament: Alta | Round: 2 | Opponent: XX | Judge: XX First, the rule of law animates democracy- its crucial to rights protections and reducing all forms of violence Second, Rule of law is a gateway to every disad impact Third, the rule of law requires the protection of individual civil rights Harms SCOTUS ruled in Saucier V Katz that a duplicative “double reasonableness” standard must be applied in 4th amendment cases. This has disrupted the balance of immunity jurisprudence tilting the playing field overwhelmingly in favor of police gutting section 1983 and civil rights protections broadly The 4th amendment already provides broad protection for police conduct-Saucier goes too far in protecting police at the expense of civil rights through duplicative legal sleight of hand Double reasonableness warp the rule of law in favor of police defendants Duplicative immunity is a threat to freedom- it eviscerates the 4th amendment by allowing illogical exceptions 1983 is crucial to the rule of law- it’s the lynchpin of rights protections Successful civil rights challenges to police misconduct are crucial to challenging cultural militarism. Carter ‘15 Independent of civil rights protections an incoherent, government biased QI system undercuts law enforcement and the rule of law broadly Solvency The Supreme Court ought to limit qualified immunity in excessive force cases The plan strikes a goldilocks middle ground by eliminating massive pro police bias in existing immunity jurisprudence The aff is goldilocks- it protects officers while eliminating judicial confusion and bias QI is the key barrier- counterplans don’t solve the case The aff is key to meaningful challenges to police conduct and legitimacy of rule of law | 12/2/16 |
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