Professor Clay Calvert: January/February LD Topic Analysis

Professor Clay Calvert is a Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida. He has authored or co-authored more than 130 law journal articles on topics related to freedom of expression.

Resolved: Public colleges and universities in the United States ought not restrict any constitutionally protected speech.

Definitions

What is a public college or university?

The definition of “public university” varies between states, since both public and private universities are created under state, rather than federal, law (Horsley and Sun 2). Although the specific provisions and stated goals are subject to variation, the common theme that permeates all public universities is that they are “held accountable to [a] myriad [of] state regulations and laws” and are governed by boards typically selected through partisan political mechanisms (Duderstadt and Womack 29-30). While private universities receive funding from the state, they are largely exempt from the strict accountability standards that public universities are beholden to. For example, the Board of Governors of the California Community Colleges and the Trustees of the California State University are required by law to “provide for live video and audio transmission of all meetings, which are open to the public” and must adhere to specific guidelines regarding the type of recording and the length of time each recording must be accessible (Cal. Edc. Code § 66020.5). By contrast, private universities may exercise their discretion as to whether or not to allow public access to meetings. The University of Southern California, a private institution, has opted not to allow public access to meeting nor to report the content of the meetings (Bylaws of the University of Southern California Sec. 3).

Constitutionally protected speech

Since the vast majority of speech is protected, it is easier to grasp what is not protected. For the purposes of this topic, as the resolution specifies “public colleges and universities,” there are three types of unprotected speech that are the most relevant, according to Prof. Calvert. Those are fighting words, incitement to violence, and true threats.

Fighting Words

Chaplinsky v. New Hampshire 315 U.S. 568 (1942): A Jehovah’s Witness was arrested for calling the town marshal, who was preventing him from preaching, a “damned Fascist” and a “damned racketeer.” The Supreme Court upheld the marshal’s decision to arrest Chaplinsky, ruling that:

“There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”.

Professor Clay Calvert explains that in order for something to be considered fighting words, it “must be 1-on-1 using personally abusive epithets”. Supreme Court jurisprudence has limited a seemingly broad category of speech into one that is increasingly narrow.

A New York statute criminalizing flag-burning and verbally abusing the flag was overturned after an African-American man was arrested for burning a flag after the assassination of civil rights activist James Meredith. In the majority opinion, Justice John Harlan wrote that “we are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects” (Street v. New York).

In 1971, the Supreme Court ruled in Cohen v. California that a shirt reading “f–– the draft” did not constitute fighting words as it could not be considered a personally abusive epithet.

Incitement to violence

Incitement to violence occurs when the “speaker is trying to incite the people to commit violent acts against other people,” Prof. Calvert explains. Once again, he states that although this may appear to be unconstitutionally broad, in order for something to fall under the category of incitement to violence, it must meet two criteria (Brandenburg v. Ohio):

  1. Directed to produce imminent violent or lawless behavior
  2. Likely to produce it

True threats

True threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (Virginia v. Black). In the same case, the Court asserted that intimidation “is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death”. However, Professor Calvert notes that the Supreme Court has not done a very good job of clarifying what constitutes a “true threat”. For example, in a recent case, the Supreme Court was asked to considered whether statements posted on Facebook satisfy the true threat requirement but instead ruled narrowly on the specific statute at hand rather than issue a more comprehensive ruling (Elonis v. United States).


The Resolution: Approaches

The case law on speech regulation at public institutions and universities is well established, according to Professor Calvert, and is in agreement that public institutions must uphold all forms of constitutionally protected speech. Students at public colleges and universities have the right to distribute offensive material (Papish v. Board of Curators of University of Missouri), use school facilities for religious services (Widmar v. Vincent), and form political organizations (Healy v. James). In Widmar v. Vincent, the Court wrote that “the First Amendment rights of speech and association extend to the campuses of state universities”. Thus, constructing an argument based off of the premise that the current law is ambiguous with respect to the application of the First Amendment on public university campuses isn’t feasible.

Taking this into account, it becomes apparent that much of the debate will be addressed in a philosophical manner, as evidenced by the use of the word “should” in the resolution. In a philosophical and moral sense, there are a multitude of different approaches to the resolution. Some, like consequentialism, are more pragmatic and well-known while others, like legal hermeneutics, are less well-known and are more topic-specific.


Framework

Consequentialism

A consequentialist approach to the resolution will consider the absolute benefits of freedom of speech and regulations placed upon freedom of speech. In an article published in the Vanderbilt Law Review, Alan K. Chen and Justin Marceau defend the use of investigative deceptions to expose illegal activity as form of high value expression that should be protected under the First Amendment (Chen and Marceau 1440). This constitutes an explicitly consequentialist view in which speech is valued only when it is used to advance a specific goal, such as democracy (Goldberg 690).

A more moderate interpretation takes the importance of speech itself into consideration, but still focuses primarily on the values that said speech promotes. In the context of the resolution, either an explicit or moderate consequentialist approach will justify the restriction of speech when such restrictions are framed as a way to uphold important values.

It is important to note, however, that consequentialism, as with any theory, has its flaws. The consequentialist argument supporting speech restrictions focuses on the advancement of certain ideals, especially democracy. Anti-consequentialists contend that permitting restrictions of speech based on the promotion of amorphous ideals is a flawed approach since it is impossible to define the point at which the ideal has been realized (Richards 782). Additionally, opponents of the consequentialist approach argue that “strong free speech protections come at the expense of many types of speech-related harms, including emotional distress, privacy intrusions, reputational [sic] damage, and violence provoked in audiences” (Goldberg 689).

Legal hermeneutics

Legal hermeneutics works to bridge the gap between “subjectivity” and “objectivity” in the analysis of legal doctrine. It is used to find the middle ground between subjectivism (that a legal document has no fixed meaning) and objectivism (that a legal document cannot be interpreted) (Mootz 526). The most fundamental question of legal hermeneutics seeks to answer is how legal texts convey meaning (Mootz 555).

One of the most renowned scholars in legal hermeneutics is Hans-Georg Gadamer, who wrote that although our cultural traditions “cannot be completely transcended and placed aside during the reading experience,” it is important to approach a text in good faith (Leedes 376). Gadamer also argues that these underlying cultural values create a commonus sensus (common sense view) that is held by the general population. This common sense view is often in conflict, if not in direct opposition, “with the view that the Framers or an elite group of judges should have the final word on textual meaning” (Leedes 381).

When considering the regulation of speech from a legal hermeneutic standpoint, neither the Constitution nor court decisions can be read without interpretation. In the case of the Constitution, the First Amendment must not be considered in terms of the Framer’s intent but rather the common sense view of the general public as to its meaning. However, it is cautioned that “texts — in the legal realm and elsewhere — must be allowed to say what they wish, not be forced to say what we want them to say” (Montgomery).

By applying legal hermeneutics to the resolution, you are able to drastically reduce the importance of the explicitly constitutionalist argument of the pro (ex: the Constitution provides for freedom of speech therefore we must not regulate in order to adhere to its original intent). Instead of dismissing the importance of the Constitution, you are able to apply the idea of a common sense view that supports some regulation of speech.

Negative liberty

The concept of negative and positive liberties was first introduced by Isaiah Berlin is his Two Concepts of Liberty in 1958 and has since been expounded upon by scholars and philosophers. In the simplest terms, negative liberty is the freedom from –– “from interference, coercion, or restraint –– while positive liberty means freedom to, or self-determination –– freedom to act or to be as one wills” (Heyman 81).

This is perhaps the simplest and easiest framework to use on the pro side. Based on the fact that the First Amendment protects citizens from government censorship, it is a form of negative liberty that can only be upheld if the government does not impose undue restrictions on speech.  

The Harm Principle – John Stuart Mill

In his seminal work, On Liberty, John Stuart Mill argues that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (Mill 68). Although not an absolutist approach, Mill’s three pillars of the Harm Principle are wide-ranging:

  1. The concept of “rights” is not sufficient enough to warrant allowing an action to occur. Rather, the prohibition of such action is justified it if has the greatest utility (ex: if the action is banned, it will benefit a greater number of people than if it is permitted)
  2. “Society should only interfere with the harmful action, e.g. outlaw it or declare it immoral, if doing so is in the general interest” (Lacewing).
  3. “Society can compel people to help others under certain circumstances, e.g. in defending society against attack, in rescuing someone in danger of dying” (Lacewing)

As it applies to the resolution, Mill’s utilitarian approach is best suited for the con side, as it justifies government restriction of “rights” on behalf of the greater good. To support this framework, all the con debater must do is show that placing restrictions on constitutionally protected speech at public universities has the greatest utility.

(Feminist) Standpoint Theory

Although this deals primarily with the integration of “other” perspectives in academic disciplines, particularly science, it can be extremely useful in examining this topic. In an analysis of the right of freedom of speech, Daniel Overgaauw writes that “certain freedoms are more valuable to some than to others” in the sense that limitations prevent certain voices from being heard. For example, an author at a national newspaper will easily be able to express his views and have a wider audience than someone without an Internet connection who cannot post on a personal blog.

From a feminist standpoint (although standpoint theory is a wide-ranging discipline, I will focus on feminist theory as it is one of the more developed subsets), this concept of a freedom of speech that is limited by social, political, and geographical factors represents a stark division between the elite and the “other”. In and of itself, freedom of speech is a doctrine that benefits everyone. However, from a feminist standpoint, the reality is that “the more value-neutral a conceptual framework appears, the more likely it is to advance the hegemonous [sic] interests of dominant groups, and the less likely it is to be able to detect important actualities of social relations” (Harding 6). In the context of the resolution, this could be utilized as both a pro and con framework.

As a pro framework, it can be used to oppose the regulation of speech on behalf of the “other.” That is, the voices of the privileged overshadow those of the marginalized in the more upper-class, male, elite-dominated private universities, so public universities provide a unique forum for minorities. Thus, regulation of these public universities would further silence these already marginalized groups.

As a con framework, it can be used to undercut the assumption that freedom is universally beneficial and introduce arguments addressing social inequalities (Wylie 26). By taking this route, you are able to ask a moral question of your opponent: Why is freedom of speech valued? The answer, from a feminist standpoint, is because of androcentric norms. A key component of feminist epistemology, then, is to give the marginalized population a voice within the dominant social structure. The marginalized population, although subverted by the hierarchical sociopolitical system, has unique perspectives that can shed light on certain issues and problems.   


Pro arguments

  1. Supreme Court rulings prevent public universities from restricting constitutionally protected speech, therefore circumventing those decisions undermines the legitimacy of the legal system

As I previously stated, the case law on the First Amendment in public universities is well-established and is clear that public universities may not place additional restrictions upon speech. If the government were to disregard the rulings of the Supreme Court and impose the very restrictions it banned, it would undermine the internal legitimacy of the government. Since internal legitimacy is key in ensuring an obedient citizenry that respects the state, the undermining of established democratic principles could lead to a downfall of the state (d’Aspremont 882-3).

  1. Freedom of speech is the cornerstone of a free society

Based on the existing jurisprudence and the general public attitude, we can conclude that  the main “reason we protect free speech is because of its essential role in advancing democratic self-governance” (Bhagwat 59). The restriction of speech inhibits our ability to advance democratic self-governance, thus calling into question our commitment to the fundamental principles of our democracy.

  1. The purpose of higher education is to promote the free flow of ideas

As Professor Clay Calvert noted, the primary purpose of universities and colleges is to advance the open discussion of ideas. By allowing public universities to restrict protected forms of speech, it threatens the future of higher education. In his convocation address, Professor Geoffrey Stone stated that “academic freedom is, in fact, a hard-bought acquisition in an endless struggle to preserve the right of each individual, students and faculty alike, to seek wisdom, knowledge and truth”. Should free speech be restricted, it would endanger the goal of higher education.


Con arguments

  1. Restrictions can reduce offensive speech that falls in the “grey area” of Supreme Court jurisprudence

This is an argument that your opponent could easily disprove, but if it is presented in the right way, it could prove to be very successful. If you are in a circuit dominated by lay judges, this argument may resonate with them. The essential premise of this argument is that minorities suffer from undue verbal discrimination and harassment and that it is the government’s duty to protect them. However, instead of advocating for a total ban on offensive speech, you would simply be supporting the expansion of public universities autonomy to regulate offensive speech that falls in the “grey area” between constitutionally protected and unprotected speech.

  1. The government has a moral obligation to ensure that freedom of speech applies equally to all people

Under this argument, the overriding theme that must be defended is that paternalism is beneficial. Since certain groups dominate discussions of social and political issues, “freedom” of speech is not even being realized in the status quo. That is, because some individuals have an inherently better chance of being heard, freedom of speech is not “free”. In order free speech to be “free” in the sense that everyone has the ability to be heard if they put in the same amount of effort, the government must moderate the effects of inequality.

It is important to note, however, that this position is not advocated for arbitrary restrictions on “privileged” groups, but instead supports the leveling of the playing field by re-establishing the institutional structures that facilitate speech.


Conclusion

Although the legal doctrine in clear, the moral and philosophical questions surrounding freedom of speech and government regulation are largely unresolved. This resolution asks you to explore the role of government, the definition of “freedom”, and the social divisions that give rise to the question in the first place. As a debater, it is your job to answer these questions in a way that both persuades and informs.


Works Cited

Balkin, Jack M. “Old school/New school speech regulation.” Harvard Law Review 127 (2014): 2296-2342. [link]

Bhagwat, Ashutosh Avinash. “Free Speech Without Democracy.” UC Davis Law Review 49.1 (2015): 59-121. [link]

Brandenburg v. Ohio 395 U.S. 444 (1969) [link]

Bylaws of the University of California [link]

Cal. Edc. Code § 66020.5 [link]

Chaplinsky v. New Hampshire 315 U.S. 568 (1942) [link]

Chen, Alan K., and Justin Marceau. “High Value Lies, Ugly Truths, and the First Amendment.” Vanderbilt Law Review 68 (2015): 1435-1507. [link]

Cohen v. California 403 U.S. 15 (1971) [link]

d’Aspremont, Jean. “Legitimacy of Governments in the Age of Democracy.” NYU Journal of International Law & Politics 38 (2005): 877-917. [link]

Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) [link]

Duderstadt, James J., and Farris W. Womack. The Future of the Public University in America: Beyond the Crossroads. JHU Press, 2004. [link]

Goldberg, Erica Rachel. “Free Speech Consequentialism.” Columbia Law Review 116 (2016): 687-756. [link]

Harding, Sandra. “Standpoint Theory as a Site of Political, Philosophic, and Scientific Debate.” The Feminist Standpoint Theory Reader. Ed. Sandra Harding. New York: Routledge, 2004. 1-15. Print. [link]

Heyman, Steven J. “Positive and Negative Liberty.” Chicago-Kent Law Review 68 (1992): 81-90. [link]

Horsley, Jamie P. and Can Sun. “Information Disclosure Requirements and Issues for Universities in the United States: Letting Sunshine into the Ivory Tower.” [link]  

Lacewing, Michael. “Mill’s ‘harm principle’.” [link]

Leedes, Gary C. “The Latest and Best Word on Legal Hermeneutics: A Review Essay of Interpreting Law and Literature: A Hermeneutic Reader.” Notre Dame Law Review 65 (1990): 375-1106. [link]

Manhardt, Sarah. “Examining the importance of free expression.” University of Chicago. 23 Sept. 2016. [link]

Mill, John Stuart. “On Liberty.” A Selection of his Works. Macmillan Education UK, 1966. 1-147. [link]

Minn. Stat. § 136F.02 [link]

Montgomery, John Warwick. “Hermeneutics, Legal and Theological: An Exercise in Integration.” [link]

Mootz III, Francis J. “The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur.” Boston University Law Review 68 (1988): 523-617. [link]

Overgaauw, Daniel. “The Paradoxes of Liberty: the Freedom of Speech (Re-)Considered.” Amsterdam Law Forum, 2.1 (2009): 25-32. Web. 12 Dec. 2016. [link]

Papish v. Board of Curators, 410 U.S. 667 (1973) [link]

Richards, David A.J. “Constitutional Legitimacy, the Principle of Free Speech, and the Politics of Identity.” Chicago-Kent Law Review 74 (1998): 779-822. [link]

Sweezy v. New Hampshire, 354 U.S. 234 (1957) [link]

Virginia v. Black 538 U.S. 343 (2003) [link]

Wylie, Alison. “Why Standpoint Matters.” Science and Other Cultures: Issues in Philosophies of Science and Technology (2003): 26-48. [link]

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