January 23, 2017
The 2017 January/February Lincoln-Douglas topic is engaging both because it is extremely timely and because it affords creative debaters a panoply of strategic opportunities. The resolution reads, Resolved: Public colleges and universities in the United States ought not restrict any constitutionally protected speech. Most debaters and coaches – especially those who have policy debate training – were surprised by the inclusion of the word "any," in part because it opens up affirmative debaters to a nearly-infinite number of plan-inclusive counterplans. I can practically see negative debaters excitedly planning the ten-thousand exceptions to the affirmative; "permit all speech with a narrow exception for X," where X is anything from hate speech to violent pornography to crush videos.
This article challenges that common negative strategy. A core strategic element of PICs is that they claim to solve almost all of the affirmative's offense, and then outweigh on the new offense generated by the net benefit. In this brief article, I will offer an answer to all types of PIC out of speech by showing that PICs cannot solve advantages related to free speech.
Ken White – who is a First Amendment legal scholar that runs a wonderful blog – explains why creating exceptions to the First Amendment is dangerous and ineffective at preserving rights. In a quirky self-question-and-answer format, he comments on PEOTUS Trump's support for criminalizing flag burning by arguing that argues that the flag burning cases are important, because their central dispute "goes directly to the structure and methodology of free speech analysis." In both cases in which the SCOTUS granted certiorari, the government's defense of criminalizing flag-burning was that restricting the speech was especially important in this context.
The SCOTUS resoundingly rejected this argument, because "[i]n free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself." White argues that once the SCOTUS legitimizes the concept of making new exceptions to the First Amendment, it is only a matter of time until the First Amendment becomes swiss cheese: full of holes to suit the flavor of the day.
The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment. Just like crush videos. wat Crush videos. You know, videos of women stomping on small helpless animals. That's . . . that's a thing? Of course it's a thing. Ugh. What does that have to do with flag burning? Or the First Amendment? Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens, the Supreme Court found that the statute violated the First Amendment. That sounds pretty straightforward. Why is it significant? It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens. The Supreme Court — in an 8 to 1 decision — firmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones: "From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382–383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) . Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous: The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." Brief for United States 8; see also id., at 12. As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. 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. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison , 1 Cranch 137, 178 (1803). So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.
White's argument essentially mirrors the SCOTUS's: any new exceptions to the First Amendment collapse the rigid refusal to bend on free speech, and that rigid refusal – what White terms the "methodology" of First Amendment analysis – is the real source of the affirmative's advantages. Thus, any negative PIC does not – and cannot – solve free-speech related affirmative advantages, because they collapse the true source of the advantage: the inflexible principled methodology.
The difference is that free speech involves a yes/no threshold (Does society defend speech?) rather than a proportional spectrum (How much total speech exists?). White and the SCOTUS suggest that restricting protected speech even in small amounts is not functionally different than restricting it enormously, because the issue lies with the act of restriction.
White also builds in a clever turns-case argument that generates independent offense on PICs. I particularly like his sassy style of writing:
The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't. The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."
Crucially, that card is specific to both hate speech and cyber-bullying, so a good highlighting might make it especially responsive to the most common negative PICs.
Good luck on this month's topic!
 These are termed "PICs" in policy debate.
 Katherine MacKinnon has written a lifetime of legal scholarship criticizing pornography – especially the most violent types of pornography. If you haven't read Professor MacKinnon's scholarship, you are not prepared for the kritik debates on this topic.
 Ken White, Lawsplainer: Why Flag Burning Matters, and How it Relates to Crush Videos, Popehat (Nov. 29, 2016) https://popehat.com/2016/11/29/lawsplainer-why-flag-burning-matters-and-how-it-relates-to-crush-videos/ (explaining that "crush videos" involve a fetish where women in high heels kill small animals).
 On this topic, the net benefit will almost always be about preserving a restriction on some sort of speech.
 White, supra note 3.
 In practice, this is likely more true of some advantages than other. A constitutionality AC is solved 0% based on this argument. A "marketplace of ideas" utilitarian-style affirmative is probably solved relatively well, unless you ultimately win specific utilitarian impacts to the new exceptions which will probabilistically be made (or unless you are a rule utilitarian).
 White, supra note 3.