Tournament: Berkeley | Round: 1 | Opponent: XX | Judge: XX
I value Morality –

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

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

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

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

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

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

Thesis
Our central thesis for this debate is that universities are a place for learning and that restrictions on free speech limit student dissent and make it an undemocratic environment. Only by allowing free and open discussion can democracy work.
Advantage 1
In the current university system, schools can shut down student publications and dissent because things like newspapers or broadcasts are partially funded by the school. This functions as censorship. Lukianoff, JD Stanford, 05

(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)

The Seventh Circuit also erred in mechanistically applying forum analysis to a collegiate student newspaper. For decades, the independence of the student media and student groups had largely been presumed by courts. Under Hosty, however, once a student publication or student group is deemed to be “subsidized” - a dangerously vague term that could potentially include virtually all collegiate student groups - the administration then has the right to decide whether it is granted public forum or non-public forum status. If the administration designates the group as a non-public forum, the administration may engage even in explicit viewpoint discrimination if that decision is considered “reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273. This remarkably deferential standard provides all students with precious little, if any, real protection from censorship.

This censorship limits student dissent and allows universities to have a monopoly over student speech. Lukianoff, JD Stanford, 05

(George, Samantha Harris, Foundation for Individual, Rights in Education, 2005 WL 2736313 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY et al., Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 19, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief Amici Curiae of the Foundation for Individual Rights in Education; The Coalition for Student and Academic Rights; Feminists for Free Expression; The First Amendment Project; Ifeminists.Net; National Association of Scholars; Accuracy in Academia; Leadership Institute; The Individual Rights Foundation; The American Council of Trustees and Alumni; and Students for Academic Freedom in Support of Petitioners)

Finally, outside the world of legal theory, the Hosty decision will compound an already existing free speech crisis on America's college campuses. For decades, college administrations have demonstrated a persistent, determined desire to limit free speech and open debate on campus. Hundreds of colleges have enacted speech codes that suppress undeniably protected speech. Universities have abused student fee systems to deny associational rights to disfavored groups, established “free speech zones” and other highly restrictive regulations, and too often have refused to prevent student mob censorship. Fortunately, federal courts and agencies2 have limited administrative control over free expression to maintain the unique status of college campuses as a “ marketplace of ideas.” Hosty is a step in the opposite direction. It dangerously increases administrative discretionary powers over speech while decreasing administrative accountability. If allowed to stand, Hosty will have numerous, specific, predictable, and far reaching negative consequences for free speech and robust debate on America's college campuses. The Hosty decision threatens the very existence of independent *5 collegiate media as well as the independence of student groups; it re-opens issues relating to collegiate liability for student media and student groups formerly considered settled; and, it allows administrators great freedom to experiment with censorship. Finally, due to the tendency of public college principles to guide private college policies, the threat Hosty presents to campus speech will not likely be limited to public campuses. For these reasons, this Court should grant certiorari.

Universities are the most important place for speech to be free – even if speech is uncomfortable the very function of the university is to allow open debates.
Kinnaird, Litigation Partner @Paul Hastings, et al., 11

(Stephen B., Raymond W. Bertrand,* Neil J. Schumacher, Rebecca L. McGuire, Paul, Hastings, Janofsky and Walker LLP 2011 WL 1523290 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Jonathan LOPEZ, Petitioner, v. Kelly G. CANDAELE, et al., Respondents. No. 10-1136. April 18, 2011. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief of Amicus Curiae Foundation for Individual Rights in Education in Support of Petitioner)

This Court's review is necessary because the Ninth Circuit's decision, which will affect all First Amendment plaintiffs, will be especially harmful on the university campus. By impermissibly chilling speech, speech codes *22 will continue to limit dialogue in the place where it is meant to be freest - the college campus. Indeed, Lopez's case offers an unusually stark example of the chilling effect on academic development and scholarly debate, as it arose within the four walls of a Speech 101 classroom. Decades of precedent have made clear that the “college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.”’ Healy v. James, 408 U.S. 169, 180 (1972). As this Court has stated, “For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 836 (1995). Courts have long recognized that students and faculty must be allowed to discuss and debate their views openly and honestly. This Court has rejected the paternalistic notion that “because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” Healy, 408 U.S. at 180. “Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ ” Id. Indeed, as the Fourth Circuit Court of Appeals recently reaffirmed, the First Amendment protects even inconvenient or uncomfortable faculty speech made for scholarly and pedagogical purposes.27 If employees of a university deserve unfettered First *23 Amendment protection for their academic work, students deserve no less.28 Yet the standing doctrine adopted by the Ninth Circuit effectively requires students to disrupt order unnecessarily, pick a constitutional fight with their superiors, and risk attendant academic and reputational consequences in order to vindicate their rights.

And, even if speech codes make sense in other contexts, restrictions at a public college kill creativity and universities are the place where we should fight for free speech the most. Goodman, Director Student Press Law Center, 05
( S. Mark Goodman, Michael C. Hiestand, Student Press Law Center 2005 WL 2736314 (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Margaret L. HOSTY, Jeni S. Porche, and Steven P. Barba, Petitioners, v. Patricia CARTER, Respondent. No. 05-377. October 20, 2005. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief of Amici Curiae Student Press Law Center, Associated Collegiate Press, College Media Advisers, Community College Journalism Association, Society for Collegiate Journalists, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, National Newspaper Association, Newspaper Association of America, Society of Professional Journalists, Associated Press Managing Editors, College Newspaper Business and Advertising Managers, National Federation of Press Women, National Lesbian and Gay Journalists Association and the Independent Press Association/Campus Journalism Project in Support of Petition of Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba for Writ of Certiorari Of Counsel: S. Mark Goodman, Michael C. Hiestand, Student Press Law Center, 1101 Wilson Blvd., Ste 1100, Arlington, VA 22209-2211, (703) 807-1904. Richard M. Goehler, (Counsel of Record), Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, (513) 651-6800, Counsel for Amici Curiae.)
The University is the paradigmatic “marketplace of ideas,” rendering “the vigilant protection of constitutional freedoms…nowhere more vital than in the community of American schools.” Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted). This Court has specifically recognized there is “no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.” Widmar v. Vincent, 454 U.S. 263, 268-69. This Court’s restrictive First Amendment standard in Hazelwood sprung from the premise that the special circumstances of the secondary and elementary school environment permit school authorities to exercise more control over school-sponsored student expression than the First Amendment would otherwise permit. However, the judicial deference necessary in the high school setting and below - and in the factual context of Hazelwood - is inappropriate for a university setting. A high school is an entirely different environment from a university. This Court acknowledged such a difference when it explicitly reserved the question of whether the same level of deference to school officials expressed in Hazelwood would be “appropriate with respect to school-sponsored expressive activity at the college and university level.” Hazelwood, Id. at 273, n.7. In fact, every effort to justify censorship of college student media under Hazelwood has been rejected by the lower courts except by the Seventh Circuit in Hosty. As Justice Souter has noted, the “cases dealing with the right of teaching institutions to limit expressive freedom of students have been *8 confined to high schools, whose students and their school’s relation to them are different and at least arguably distinguishable from their counterparts in college education.” Board of Regents of the Univ. of Wisconsin System v. Southworth, 529 U.S. 217 (2000) (Sourer, J., concurring in the judgment) (citations omitted). This Court has explicitly recognized that where the “vital” principles of the First Amendment are at stake, “the first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger to speech is from the chilling of individual thought and expression.” Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819, 835-36 (1995). These dangers are especially threatening in the university setting, where “the quality and creative power of student intellectual life to this day remains a vital measure of a school’s influence and attainment.” Id. Yet that right to review and censor a student publication is precisely what the Seventh Circuit has approved in Hosty. Such restrictions have no place at a public college or university. “For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life.” Id. Lower courts have consistently struck down administrative attempts to limit free and robust student expression at the postsecondary level. Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973) (university withdrawal of funding to student publication at North Carolina State University based on editorial condemning integration rejected); Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983) (attempt by *9 University of Minnesota to change student newspaper funding mechanism after publication of controversial humor issue rejected); Bazaar v. Fortune, 476 F.2d 570 (5th Cir. 1973), aff’d with modification, 489 F.2d 255 (en banc per curiam) (University of Mississippi’s censorship of student magazine because of “coarse language” and story about interracial love affair rejected). In fact, two appellate courts have explicitly refused to apply Hazelwood to college student media. Student Government Association v. Board of Trustees of the University of Massachusetts, 868 F. 2d 473, 480 n. 6 (1st Cir. 1989); Kincaid v. Gibson, 236 F.3d 342, 346 n. 4-5 (6th Cir. 2001) (en banc). College student expression should be subject to no greater restrictions than those applicable to the public at large. Healy, 408 U.S. at 180. The driving force prompting the enactment of the First Amendment was the founders’ unwavering commitment to the freedom of the mind. Nowhere is the mind more provoked, more nurtured, more challenged to new levels of enlightenment than on the university campus. Hazelwood did not, and should not be interpreted to have taken these fundamental precepts of college education into account when it diluted high school students’ First Amendment rights. Nothing in Hazelwood or its progeny should be read to alter the venerated balance favoring free and independent thought on America’s college and university campuses.

Finally, restrictions of speech automatically shut out some views from the start, which is undemocratic because it fosters dogmatism where neither side has to listen to the other.
Kozinski, 9th circuit judge, 10
(Alex, RODRIGUEZ v. MARICOPA CO. COMM. COLLEGE http://cdn.ca9.uscourts.gov/datastore/opinions/2010/05/20/08-16073.pdf)
 Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens, No. 08-769, slip op. at 7 (U.S. April 20, 2010) (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”). 4 Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate: Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652, 667 (1925); id. at 673 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment. 5 This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)). We have therefore said that “the desire to maintain a sedate academic environment . . . does not justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.” Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir. 1975).