Is it constitutionally justified to take adverse action against the banner-waving students at ODU?
Whether any adverse action taken by Old Dominion University against the students responsible for the creation and display of sexually suggestive signs on or about August 26, 2015 can be constitutionally justified.
For reference: http://www.cnn.com... For reference, here are transcriptions of three of the banners in question:
"Rowdy and Fun. Hope your baby girl is ready for a good time"
"Freshman daughter drop off"
"Go ahead and drop off mom too"
The debate must not hinge on whether adverse action was, in reality, taken against the responsible students by the University. The debate must focus on the constitutionality of actual adverse action taken against the responsible students by the University, or the constitutionality of hypothetical adverse action taken against the responsible students by the University.
My position will be the following:
1) That the creation and particularly the display of the signs in question are protected free speech under the First Amendment of the Constitution of the United States.
2) That there exist no sufficient legal exceptions to overcome these banners' status as protected speech.
I ask that the proponent take the position that there exist sufficient legal grounds to constitutionally justify adverse action in response to these banners taken by the University against the students responsible for the banners in question.
The most popular arguments I have seen focus on how these banners would constitute threats and would therefore be constitutionally punishable. I do not bind my opponent to such a position.
Proponent may feel free to state proponent's argument as to the constitutional legality of adverse action against these students in round one, as well as begin arguing it fully.
I'm available in the comments for informal discussion about this latest development, questions, or clarifications. As I'm still new to the site, I ask that everyone remember that the website isn't intuitive to me yet.
With that being said, I'm very much looking forward to this debate, given recent events and the fervor with which proponents of adverse action have advocated their position. I hope to read the most persuasive arguments possible. Thank you in advance.
Adverse action: A broad term atypically used in discussions of constitutional law. Here, please understand it to mean any action taken as punishment and/or curtailment against a person or people. In this particular example, it would concern University action in the form of discipline, suspension, expulsion, etc., against the responsible students. More clarification can be given upon request.
The debate structure will be:
Round 1: Acceptance
Round 2: Opening Arguments (Pro cannot rebut in this round)
Round 3: Rebuttals (Pro cannot rebut Con's third round rebuttals)
Round 4: Further Rebuttals (Pro cannot rebut Con's fourth round rebuttals)
Round 5: Final Rebuttals and Closing Statements (Pro cannot rebut Con's fifth round rebuttals and neither Pro nor Con can include new arguments in the fifth round. However, an extension of a previously made argument is permissible)
I expect a riveting discourse.
Conclusion: There exist no sufficient constitutional grounds for Old Dominion University to take constitutional adverse action, such as discipline, suspension, or expulsion, against those responsible for the banners in question on account of such, as the banners enjoy the status of constitutionally protected speech.
1) The display of the banners in question, of which I transcribed three examples, is properly classified as speech under current United States jurisprudence. They are expressed written words. Texas v. Johnson, 491 U.S. 397, 406 (1989) (that written and spoken words enjoy even higher protection under the First Amendment than purely expressive conduct), citing United States v. O'Brien, 391 U.S. 367, 376-77 (1968); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
This civil liberty of freedom of speech is enshrined in the First Amendment to the Constitution. The First Amendment to the Constitution reads, in relevant part, "Congress shall make no law […] abridging the freedom of speech." USCS Const. Amend. 1.
A similar case was decided by the Supreme Court of the United States in Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510 (1995). In Rosenberger, the University of Virginia withheld its authorization for payment to a group of students on the basis that their paper "manifests a particular belief in or about a deity or an ultimate reality." 515 U.S. at 822. The Court noted that the University of Virginia was a public institution, and thus "an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments." Id.
The Court held that the university's restraint on speech was unconstitutional and held in favor of the students. In doing so, the Court emphasized that "the government may not regulate speech based on its substantive content or the message it conveys." Id. at 828, citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972). Most relevantly, the Court emphasized that "[d]iscrimination against speech because of its message is presumed to be unconstitutional." Id., citing Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994).
The holding in Rosenberger referenced two of the three relevant types of speech discrimination.
The first is that of content based viewpoint discrimination. Under current United States jurisprudence, viewpoint discrimination is impermissible, as stated by the Court, "[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Id. at 839, citing Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). Discrimination against speech on the basis of a viewpoint on a certain subject matter is considered a particularly suspect form of governmental discrimination, and is categorically impermissible. Id., citing R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).
The second type of speech discrimination is content based viewpoint neutral restriction. Content based restriction on speech is subject to the strict scrutiny test, the most difficult standard for the government to pass. R.A.V. v. St. Paul, 505 U.S. 377 at 403. The strict scrutiny test presumes that the governmental restriction is unconstitutional. Roe v. Wade, 410 U.S. 113, 156 (1973). It then requires that the government bear the burden of demonstrating:
a) That there is a compelling governmental interest. Id.
b) That the restriction is necessary to further that compelling governmental interest. Id.
c) That the restriction is narrowly tailored to achieve that end. Id.
d) That the government has left open ample alternative channels of communication. Ladue v. Gilleo, 512 U.S. 43 (1994).
The third type of restriction on speech is content neutral restriction. Content neutral discrimination can impose reasonable restrictions only as to time, manner, and place in traditional public forums, such as streets, sidewalks, and parks. This type of restriction is subject to intermediate scrutiny, and the government bears the burden. Renton v. Playtime Theaters, 475 U.S. 41, 46 (1986).
Here are some key facts in the present situation:
a) The banners were created and displayed by Old Dominion University students.
b) These banners were displayed on private property.
c) We are assuming that Old Dominion University has taken or will take adverse action against the students responsible in response to these banners being displayed.
Old Dominion University is a public institution and a state actor. See http://www.odu.edu...; see also Va. Code Ann. § 23-49.11 through § 23-49.22.
If and when Old Dominion University would take adverse action against these students, it will be doing so in response to their speech. This invokes the First Amendment right to the freedom of speech. See USCS Const. Amend. 1.
Old Dominion University's adverse action is either content based or content neutral. If it is content based and, in addition, viewpoint discrimination, then a different analysis applies:
a) If Old Dominion University's adverse action is content based viewpoint discrimination, then its adverse action is categorically impermissible and it cannot be constitutional. See Rosenberger, supra.; see also R.A.V., supra.
b) If Old Dominion University attempts to justify this adverse action as a content based restriction, then it will have the burden of demonstrating how this restriction satisfies the strict scrutiny standard. See R.A.V., supra.; see also Ladue, supra; see also Roe, supra.
c) If Old Dominion University attempts to justify this adverse action as a content neutral restriction, this line of argumentation will be flatly rejected by a Court. Content neutral restrictions are only applicable when imposed upon traditional public forums, such as sidewalks, parks, and streets, and only as to time, manner, or place. See Renton, supra. A private residence is not a traditional public forum. It is also doubtful the adverse action in this case was predicated on a time, manner, or place violation.
Therefore, Old Dominion University's only option, aside from possible exceptions to free speech altogether, is to argue that these restrictions are content based viewpoint neutral, but survive the strict scrutiny standard. (Option b).
However, Old Dominion University will be unable to justify its adverse action under the strict scrutiny standard.
Precedent for this is found in the case of Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993). In Iota Xi, fraternity members were subject to adverse action by George Mason University in response to the members hosting an "ugly woman contest," which had sexist and racist overtones. 993 F.2d at 387. The university's argument was that this contest created a hostile learning environment, was incompatible with the university's mission, would create a threatening environment, and would dissuade minority students from attending the university. Id. at 388-89.
The Court determined, through the university's own statements, that the university had punished the students because their message was antithetical to the university's mission. Id. at 392. The court held that this was an illicit content-based viewpoint restriction. Id. This was one of only four of the Court's rationales and I intend to present others during the course of this debate.
In this situation, Old Dominion University, through its officers, has made similar statements, "Messages like the ones displayed […] will not be tolerated. At ODU, we foster a community of respect and dignity and these messages sickened us." https://www.facebook.com...; This suggests that the university's adverse action would be viewpoint discrimination.
The controlling precedent of Iota Xi, supra., concerns expressive conduct. As discussed above in Texas v. Johnson, supra., the written word enjoys even more protection under the First Amendment as compared to simply expressive conduct. Therefore, Old Dominion University is even less likely to succeed in constitutionally justifying adverse action.
Likewise, given the university's own statements and the controlling precedent, this adverse action will be considered viewpoint discrimination, and thus categorically impermissible. See Iota Xi, supra. at 392.
Even if it is not considered viewpoint discrimination, this adverse action cannot be justified under the strict scrutiny standard, as shown by the above precedents. See Iota Xi, supra.; see also Texas v. Johnson, supra.
I invite proponent to argue in support of free speech exceptions. My rebuttal to them will follow. I contend that none are sufficient and/or applicable.
Conclusion: Therefore, any adverse action, such as discipline, suspension, or expulsion, taken by the university against those responsible for the display of these banners on account of such would be unconstitutional.
I thank my opponent for continuing the debate.
The sexually suggestive signs posted by the Sigma Nu Fraternity  infringe on the code of conduct of the school, and therefore it is justifiable for adverse action and disciplinary actions to be inflicted upon the fraternity. Furthermore, the constitution does not protect the Sigma Nu fraternity from these actions, allowing this to be constitutionally justifiable as well.
University Code Of Conduct
The Old Dominion University Code Of Conduct  clearly states that "Sexual misconduct, including non-consensual sexual activity and/or sexual exploitation as defined in University Policy 1005: Discrimination Policy." is a prohibited act. If we are to look under the "University Policy 1005: Discrimination Policy, we will see that the students actions match the definition for sexual harassment. According to University Policy 1005: Discrimination Policy, non verbal sexual harassment is defined as:
"non-verbal (e.g., sexually suggestive emails, other writings, articles or documents, objects or pictures, graphic commentaries, suggestive or insulting sounds or gestures, leering, whistling, or obscene gestures);"
The students actions were sexually suggestive writings. This clearly infringes on the university's code of conduct. Thus the University is justified in taking adverse action on them.
Constitution: The First Amendment
We must now look at whether or not the constitution protects the Sigma Nu Fraternity from these actions. Specifically the First Amendment. Since students have the First Amendment apply differently to them, we must determine the extent of their rights or whether or not the students have any rights. To do so we must look at similar cases. This is because there is no bill or legislation directly concerning speech in a public educational institution. I will display 2 cases that relate to the incident at Sigma Nu.
Disclaimer: I will not produce a summary of the events of each case as it would take up a significant amount of character space, and inevitably, some events would be retold inaccurately as I do not have extensive experience in law. I will instead include sources that retell the story accurately and more than adequately. I will only state what we can glean from each case and how it relates to this incident.
Tinker V. Des Moines Independent Community School District
In this case a very important fact is established. It stated by Justice Abe Fortas  “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The fact that students do have rights from the First Amendment must be established when talking about free speech in a public educational institution. The extent of these rights will be shown in the next case.
Bethel School District v. Fraser 
In this case, a student released sexual metaphors and double entendres in a school assembly. The school responded in disciplinary action. When brought to court, the court had stated that the First Amendment does not protect the person(s) responsible as “The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language” and that the “First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education.”.
The fundamentals of the cases are identical as in both cases the person(s) responsible released sexually lewd and offensive language.The court concluded that this type of language is able to be prohibited in a public educational institute and that the First Amendment does not protect the person(s) responsible.
Since the language by the Sigma Nu fraternity was clearly offensive and lewd, and a previous case concludes that the First Amendment does not protect the person(s) responsible for offensive and lewd language in a public educational institute, the Sigma Nu Fraternity is not protected by the First Amendment.
The Sigma Nu fraternity’s language was clearly lewd and offensive, making certain people sick .This type of language infringed on the Code Of Conduct set by Old Dominion University, opening it adverse actions by Old Dominion University. As seen in previous cases, the First Amendment does not protect people who release lewd and offensive language, and therefore, any adverse action that is inflicted, is constitutionally justified.
Proponent argues for a recognized exception to the protection of free speech under the First Amendment. However, these banners will not fall under the exception of lewd speech. The test which determines such is the clear judicial precedent established on the issue of school speech and lewdness.
In support of this exception, proponent cites Tinker and Bethel. Unfortunately, a closer reading of the cases in question clearly shows how they fail to support this adverse action. Likewise, the fact that Iota Xi found Tinker and Bethel insufficient precludes this attempt at justification:
a) Tinker and Bethel were holdings which explicitly dealt with children in secondary schools, such as high schools, where children have limited constitutional rights. It was not geared towards adults in public universities, who have full rights. In fact, these cases specifically indicated that adults have more free speech protection than children, and that these cases were decided as to high schools:
The First Amendment guarantees wide freedom in matters of adult public discourse. […] It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults […] [that] the same latitude must be permitted to children in a public school. […] [T]he First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986) (emphasis added). The Court in Bethel explicitly stated that the reason the speech containing sexual innuendos could be punished is because the audience was "less mature," averaging around fourteen years old. Id. at 683.
Likewise, the black arm bands which were at issue in Tinker were decided in the context of children in secondary school. I encourage proponent to read the full text of the case, as it makes no reference to universities or colleges, and, through its language, exclusively makes reference to its applicability to secondary schools. See Tinker, generally. I also feel it necessary to point out that, in Tinker, the Court held against the school and for the students.
The precedential power of Tinker and Bethel is nullified by the simple fact that, as differentiated at length in Bethel as well as in Tinker, the individuals with whom we are dealing at Old Dominion University are adults, not children. See 478 U.S. at 682.
Lastly, Tinker and Bethel are even further distinguishable from the present situation at Old Dominion University in that both instances of speech occurred on school grounds, whereas our speech at issue was on private property. See Tinker, generally; see also Bethel, generally.
b) Both Tinker and Bethel were argued by George Mason University at the higher Court and the lower Court, respectively, in Iota Xi, in an attempt by the university to justify its adverse action. The Courts in both instances found, even if Tinker and Bethel did apply to universities, that George Mason University had failed to justify its adverse action under their precedents.
The attempted justification argued by the university under Bethel was rejected as insufficient under the circumstances in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 773 F. Supp. 792, 794 (E.D. Va. 1991). The Court was faced with the same argument from George Mason University as proponent now advances based on Bethel. George Mason University argued that it should be permitted to take adverse action in response to the "ugly woman contest" because:
[C]ompelling educational interests are at stake. […] [Because this contest] undermines the education of minority and women students, the university's mission to promote learning through a culturally diverse student body, the university's mission to eliminate racist and sexist behavior on campus and the university's mission to accomplish maximal desegregation of its student body.
773 F. Supp. at 794. The Court rejected the university's Bethel-based arguments, reasoning that a school may not simply assert that its interests are disrupted; it must show a "substantial or material disruption of" its educational mission. Id. The university may not allege "general, unspecific claims of harm" to its students or its educational values. Id. Lastly, the Court noted that part of a university's mission is to promote the free flow and expression of ideas. Id.
The case of Iota Xi is on par with the current situation at Old Dominion University much more than Bethel. In fact, the few differences actually operate against proponent's position. The Old Dominion University banners were written words while the demonstration in Iota Xi was expressive conduct. And, as previously noted, written words have even more protection than expressive conduct. See Texas v Johnson, supra. Additionally, the speech in this situation was on private property, not school property, unlike Bethel. Lastly but not exhaustively, despite Bethel and the exact same arguments posited by proponent as posed to the Court, the Court in Iota Xi ruled in favor of the students.
At the higher Court level, 993 F.2d 366, the Fourth Circuit United States Court of Appeals specifically considered and rejected as insufficient the Tinker analysis offered by George Mason University. The Court acknowledged that universities naturally have substantial interests in educational endeavors. 993 F.2d at 393. However, the Court plainly stated, despite the university's interest in furthering education, stopping discrimination and racism, and protecting female and minority students, that "a public university has many constitutionally permissible means to protect female and minority students." Id.
It then expanded on this notion and concluded with these decisions:
1) "[T]he manner of [the university's action] cannot consist of selective limitations upon speech." Id., citing St. Paul, supra.
2) "The First Amendment forbids the government from restricting expression because of its message or its ideas. […] The University should have accomplished its goals in some fashion other than silencing speech on the basis of viewpoint." Id.
The Fourth Circuit United States Court of Appeals in Iota Xi, along with the lower case which it affirmed, have very clearly rejected proponent's arguments as to the constitutionality at issue here back in 1991 and 1993.
As previously explained, the "ugly woman contest" in Iota Xi was even more likely to be constitutionally unprotected as compared to the banners at Old Dominion University, and yet, the Court found that even the "ugly woman contest" was protected free speech. See Iota Xi, generally.
As such, Tinker and Bethel cannot sustain this adverse action.
The Fourth Circuit United States Court of Appeals has stated in no uncertain language, even granting Tinker and Bethel to be applicable to universities arguendo, that a university must still accomplish its goals without silencing speech and without engaging in selective limitations upon speech. See 993 F.2d at 393. These methods of accomplishing its goal without infringing on speech were referenced in the lower Court in Iota Xi, 773 F. Supp 792. It held that a constitutionally acceptable response to the offending speech in question would have been to engage in free speech remedies, some examples of which are to host open debates about the topic, protest, facilitate classes as to gender issues, etc., instead of taking adverse action. See 773 F. Supp at 794.
Silencing speech and engaging in selective limitations upon speech is precisely what we are granting Old Dominion University did in this case. See id.
What's even worse, it took adverse action against the banner waving students, even though the banners were written word, whereas the protected speech in Iota Xi was merely expressive conduct. Written word enjoys even higher protection than expressive conduct. See Texas v. Johnson, supra.
c) The lower Court in Iota Xi, in holding against the university, emphasized that the First Amendment secures speech that some may think is trivial, vulgar, or profane, and that this "fundamental right extends to students at a state university." See 773 F. Supp at 793. It lastly stated, "a state university may not hinder the exercise of First Amendment rights simply because it feels that exposure to a given group's ideas may be somehow harmful to certain students." See id. This language by the Court likewise affirms that universities are subject to different standards than secondary public schools: namely, that universities enjoy more protection for free speech than high schools, thus additionally rendering proponent's reliance on Bethel and Tinker as erroneous.
It is not true that the "fundamentals of the cases are identical." The speech which was considered lewd in Bethel was far more lewd and offensive than the banners at Old Dominion University. Whereas the Old Dominion University banners contained no explicit sexual content whatsoever, the speech at issue in Bethel was much more explicit. The speech in question made more explicit reference to a man's erection and aggressive sexual activity, repeating on numerous occasions how the man was "firm" and "firm in his pants," how he "pounds it in," how he "[nails] it to the wall," including how he doesn't "attack things in spurts," how he "drives hard," "pushing and pushing" to the very end and to "the climax." https://tinyurl.com...;
With this distinction in mind, I find it doubtful that one can even successfully argue that the Old Dominion Banners were lewd, given proponent's own cited case of Bethel. But even if it is, adverse action is still unjustified. The speech in Bethel was done on school property, at a high school, during school hours, and at a school function. In the Old Dominion University situation, the banners were hung on private property, displayed by adult students of a university not at a school function.
I thank my opponent for continuing this debate. In this round, I will rebut my opponent's second round arguments. My opponent's third round rebuttals will go unmentioned for fairness.
1) The Law
"The display of the banners in question, of which I transcribed three examples, is properly classified as speech under current United States jurisprudence. They are expressed written words. Texas v. Johnson, 491 U.S. 397, 406 (1989) (that written and spoken words enjoy even higher protection under the First Amendment than purely expressive conduct)."
This fact must be established. "Speech" in the First Amendment is not exclusive to the spoken word. Now that this has been established, I can continue the debate.
R1. Rosenberger V. Rector and Visitors of the Univ. of Va
"A similar case was decided by the Supreme Court of the United States in Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510 (1995). In Rosenberger, the University of Virginia withheld its authorization for payment to a group of students on the basis that their paper "manifests a particular belief in or about a deity or an ultimate reality." 515 U.S. at 822. The Court noted that the University of Virginia was a public institution, and thus "an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments." Id."
My opponent chooses Rosenberger V. Rector and Visitors of the Univ. of Va as a comparison to the incident at Old Dominion. I propose that Rosenberger V. Rector and Visitors of the Univ. of Va is ineligible for comparison. This is because there are fundamental differences between the two cases. Any quotes that were spoken during this trial, could not be automatically applied to this trial, as they were said with the mindset of artistic expression .
Importantly, the paper in Rosenberger is artistic expression. This type of speech is nurtured especially in the First Amendment. Any judgement of this case was looked at under this light . The writings in Old Dominion can not be considered as artistic expression. Art is considered as "The conscious use of the imagination in the production of objects intended to be contemplated or appreciated as beautiful, as in the arrangement of forms, sounds, or words." The Sigma Nu Fraternity has not stated that this was a statement or something to contemplate. Until such, this cannot be considered art or artistic expression. This fundamental difference makes the case ineligible for comparison.
R2. Threats of Violence Exception 
My opponent continues to state the types of speech discrimination. However, my opponent stated "Therefore, Old Dominion University's only option, aside from possible exceptions to free speech altogether."
I propose that the actions of the Sigma Nu fraternity are in line with threats, and if this is the case, the Sigma Nu fraternity is outside First Amendment protection. Many state this is in line with rape culture. The reporter/host Zelina Maxwell had stated, in a discussion about rape culture, that " we saw recently, at Old Dominion University, just yesterday, a fraternity post[ed] signs, literally welcoming students and even their moms, and essentially threatening to rape them".
Many have clearly taken these as threats of bodily harm. The implied threats are not part of a political writing, or hyperbole, and therefore are not protected by the First Amendment.
Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ.
"Precedent for this is found in the case of Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4the Cir. 1993). In Iota Xi, fraternity members were subject to adverse action by George Mason University in response to the members hosting an "ugly woman contest," which had sexist and racist overtones."
My opponent also compares these two cases. However, I propose that cannot be compared because of similar fundamental differences between the two cases.
As stated before, the artistic expression for the Iota Xi Chapter of Sigma Chi Fraternity was present. They had made caricatures, a form of entertainment and the function of the act was for charity. This is a form of art. As seen previously, artistic expression is nurtured especially, and the case was made with this in mind.
Furthermore, the case was handled very differently. The George Mason University's entire case was on offensive speech, which is protected by the First Amendment. The university was unable to show sign's of a breach of peace, or how it interfered with its mission. Without this, the entire case hinged on offensive speech, which is, as said previously, protected by the First Amendment.
However, the writings by the Sigma Nu fraternity were significantly more threatening. It was not a form of art or entertainment, and cannot be treated as such. ODU clearly has stated what constituted sexual harassment, and the members of ODU clearly infringed on this and are therefore liable to any adverse action inflicted on them by the university.
1. 515 U.S. 819, 115 S.Ct.2510 (1995)
6. 993 F.2d 386 (4th Cir. 1993)
I. Artistic Expression
II. True Threat
"Rowdy and Fun. Hope your baby girl is ready for a good time"
"Freshman daughter drop off"
"Go ahead and drop off mom too"
It's not difficult to compare this with the speech in Watts. In Watts, the Defendant explicitly stated that he would put the then sitting President in the sights of a rifle if the Defendant were drafted. Id. at 705. The first sign at Old Dominion University simply stated that the students "hope[d] your baby girl is ready for a good time[.]" Whether this speech can be interpreted to be implicitly threatening is insufficient; no matter what measure of subjective interpretation a reader engages in, this banner cannot rise to the same threatening level as the threat in Watts. Simply put, the threat in Watts was more explicit, gave more detail as to the means of the threatened violence and as to the time at which the threatened violence would happen, targeted a far more prominent target, and targeted a specific, named individual. See id. at 705. And despite being far more threatening than the banners, even the speech in Watts was not sufficient to be considered a "true threat." See id. at 708.
I thank my opponent for continuing the debate and for their kind words in the comment section.
I will not address any of my opponent's fourth round arguments and rebutalls , as that would be unfair.
" Tinker and Bethel were holdings which explicitly dealt with children in secondary schools, such as high schools, where children have limited constitutional rights. It was not geared towards adults in public universities, who have full rights. In fact, these cases specifically indicated that adults have more free speech protection than children, and that these cases were decided as to high schools"
This is true. However, true threats deal with adults as well.
As stated previously, I propose that this is a true threat of rape. The threat that one group should rape another group, is not protected by the First Amendment. This would mean the writings are not protected by the First Amendment, opening the students to disciplinary actions and punishments by the University.
Iota Xi Chapter of Sigma Chi Fraternity V. George Mason
"The lower Court in Iota Xi, in holding against the university, emphasized that the First Amendment secures speech that some may think is trivial, vulgar, or profane, and that this "fundamental right extends to students at a state university." See 773 F. Supp at 793. It lastly stated, "a state university may not hinder the exercise of First Amendment rights simply because it feels that exposure to a given group's ideas may be somehow harmful to certain students." See id. This language by the Court likewise affirms that universities are subject to different standards than secondary public schools: namely, that universities enjoy more protection for free speech than high schools, thus additionally rendering proponent's reliance on Bethel and Tinker as erroneous."
I continue to propose that the two cases cannot be proposed. The fundamental and secondary differences make the cases ineligible for comparison.
I stated previously how art is nurtured in the eyes of the first amendment. The actions in this case are art and entertainment. The actions in Old Dominion incident are not art, but simply crude writings. The quotes said during this case were said in the mindset of art.
I also stated how the cases were handled very differently. George Mason University stated that the writings were offensive. The university also attempted to assert that there were interests disrupted through these statements:
"[C]ompelling educational interests are at stake. […] [Because this contest] undermines the education of minority and women students, the university's mission to promote learning through a culturally diverse student body, the university's mission to eliminate racist and sexist behavior on campus and the university's mission to accomplish maximal desegregation of its student body."
The university however was unable to produce evidence that this was the case. Instead, they chose general, unspecific claims. The court stated the University must show "substantial or material disruption of its educational mission". They may not affirm "general, unspecific claims of harm".
Since George Mason University was unable to meet these requirements, the entire case was resting on offensive speech. However, offensive speech is protected by the First Amendment, and therefore, George Mason could not inflict disciplinary actions.
However, the writings in Old Dominion University were threatening. They were not simple acts of entertainment that happened to be offensive. Since they are threats, and threats are not protected by the First Amendment, it is permissible for Old Dominion University to take disciplinary actions on the fraternity.
2.993 F.2d 386 (4th Cir. 1993)
Comment: I felt I had to address this. My arguments and rebutalls for this round are very similar to my arguments and rebutalls from last round. I can understand how this may be looked as repetitive and redundant. However, my opponents 2nd round arguments were similar to his/her 3rd round points. Therefore, the rebutalls I would have for his 2nd round would be similar to the rebuttals I would have for his/her 3rd round.
Another result of this is significantly shorter arguments. I believed it would be redundant to use the same facts as used previously , and because of this, shorter arguments are an unfortunate result.
It would be unfair for me to address my opponent's fourth round (leading to longer and different arguments) , so I will not do so.
I ask voters to keep this in mind when voting.
In this final round, I will first reference my various arguments.
My opening arguments in Round 2 dealt with free speech in the context of when the government can punish or restrict it. It analyzed three types of speech discrimination: a) content based viewpoint discrimination, b) content based discrimination, and c) content neutral restrictions. This outlined the process by which a Court would adjudicate this, and how truly difficult it is for the government to prevail in such cases. In this case, the university would fail the strict scrutiny test.
Then, in Round 3, I analyzed how the Court would adjudicate this in light of the educational interests in Bethel and Tinker, in rebuttal to proponent's attempt to justify adverse action predicated on interference with said educational interests. I discussed how these cases would not suffice.
Then, in Round 4, I analyzed how the speech in Rosenberger was not properly categorized as artistic expression, and how artistic expression is not an especially protected form of speech compared to written word; in fact, I articulated how the opposite was true as per binding legal authority in Texas, supra. Likewise, I highlighted how the "true threat" exception to free speech would not suffice, given that it has failed to prohibit speech which was far more threatening than these mere banners, such as in Black and Watts.
As proponent can see, these arguments are discrete; they are not similar in any substantive way.
Proponent again proposes the applicability of the "true threat" exception to free speech. However, proponent fails to present any rationale whatsoever for why these banners are threats, why these banners are threats of rape, or how they could possibly reach the level of "true threat" as to be prohibited. This is especially problematic for proponent in light of far worse threats in Black and Watts, which were held not to be threatening enough to be true threats.
I'll move on to a more direct rebuttal now:
Proponent states, "[a]s stated previously, I propose that this is a true threat of rape." Proponent offers no rationale whatsoever for the veracity of this proposal. I have already explained how these signs will fail to be considered true threats, considering that even more threatening speech, such as in Black and Watts, was constitutionally protected, despite the government arguing for the "true threat" exception in both.
The fact that proponent is unwilling or unable to offer evidence as to how these banners are true threats is telling. Without any rationale for this, and without any explanation, case authority, or as much as a comment about where this implication of rape originates, a Court will rightfully refuse to support a finding of the true threat exception. This is especially evident from the fact that more explicit threats made against the President were not even true threats. See Watts, supra. This is especially evident from the fact that cross burning, admitted to be a historical device of intimidation and imminent violence, was found not to be a true threat when done on private property. See Black, supra.
When it comes to justifying adverse action by the government against a citizen, who is endowed with substantive civil liberties and due process rights, a mere proposal is not enough. There must be convincing good cause and evidence. Proponent offers none, convincing or otherwise, for what has become his main point: that these banners are both threats and true threats.
Furthermore, proponent's argument falls even shorter: it's false that threats are necessarily unprotected by the First Amendment. People often transmit joking threats about these crude things without governmental interference, for example. Whether it be over the internet, at standup comedy, or between friends, jokes and exaggerations which revolve around poignant and terrible violence are not actionable: "I'm going to kill Jane if she forgets the groceries again." "If you get that award instead of me, I'll hire assassins to take you out, Joe!" "I'm going to rape you in this tennis match." The reason for this is because a mere threat isn't enough. It must be a true threat. And in order for a true threat to be established, one must prove the speech rises to a threat level even truer than in Watts and Black. Proponent has not articulated good cause to believe these banners are threats, nor any that would support these banners being true threats. Even if we grant that it's just "obvious" that these are rape threats, proponent has still failed to provide any argumentation whatsoever as to how these would rise to the legal threshold of "true threat," especially in light of the more threatening speech in Black and Watts.
That aside, a Court will not permit the government to shirk its heavy burden of proof just because, in the minds of some readers, the banners were "obviously" rape threats. A Court requires evidence for adjudication. Proponent offers no evidence of the students' intent to intimidate. That's because there is none, and, as the Court ruled in Black, supra., the government and the Court may not simply infer intent from the act itself.
Furthermore, these kinds of rambunctious and sexually minded signs are being hung by students, male and female, on move-in days at many colleges, and have been for a decade. http://tiny.cc...; This doesn't mean the populace must accept them quietly, but what it does suggest that they are not threats; it will reinforce to a Court the fact that these signs are merely a crude tradition, rooted in the immature humor and overactive sexuality of young men and women at party schools. What's more, the student in question has already stated that he didn't mean anything disrespectful. http://tiny.cc...;
As for Bethel and Tinker, proponent offers no legal authority for the applicability of these cases to the current case involving adults and universities. Proponent fails to provide any evidence of actual, substantial, material harm to any educational interests.
Proponent argues that a case based on art and entertainment cannot be compared to a case involving written words. This is not true. As I've already explained, art and expression are analyzed as speech. See Texas v. Johnson, supra. They are a form of free speech, just as written and spoken word is another form of speech under the First Amendment. See id. Why would the Court give free speech protection to both expression and written word if they are unable to be compared, such as the expressive flag burning issue in Texas, supra.? Why would expression and art fall under the same First Amendment analysis as writing if they were as incompatible as proponent contends? I do not find it coincidental that proponent cites no case which supports his position.
The cases can be compared in one simple way: art and expression get free speech protection. Written and spoken words get more free speech protection. Penultimately, according to proponent, Iota Xi dealt with "art and expression." This is a strange idea, given that the Court never even touched on such a topic. And, of course, the banners at present are written words.
Proponent is once again glossing over pertinent facts of my arguments and of the actual cases. Proponent says that the entire case in Iota Xi ended up being based on offensive speech. This is not true. The entire case consisted of many arguments posed by George Mason University, including the failed arguments that the subject speech could be banned pursuant to the educational interests of Tinker and Bethel.
This case isn't about we want, and it isn't about what we like. This case is about what the power of our government is to take adverse action against one of its citizens.
It is about whether the current law permits adverse action against these students for these particular banners. It is true that laws can change, and that laws can be wrong. But these normative aspects do not answer the only question posed here:
Does the government, in the form of Old Dominion University, have the legal authority under current constitutional jurisprudence to take adverse action against those responsible for these banners?
The answer is a resounding "no."
The Courts have always allowed and continue to allow wide latitude when it comes to speech. The very purpose of the First Amendment is to protect opposing viewpoints, even and especially when those viewpoints are abhorrent to the sensibilities of men and women of character, of the public, and to the majority. This is not because the First Amendment is forcing us to accept the propriety of such speech, nor is it because the government deems such speech good, right, or proper. This is because, under the Constitution of the United States, the government has no role in deciding what content is worthy and what content is unworthy. It is because the government is not, and ought not to be, the arbiter of which content may be voiced and which may not be.
Why is this? It is because the power of governments to restrict speech they find unsatisfactory has inevitably led to the marriage of governance and despotism. See Franklin, Benjamin. "On Freedom of Speech and the Press." Pennsylvania Gazette 17 Nov. 1737. It is because the authors of the First Amendment knew that there was a better answer than governmental coercion and force to effectuate change against crudeness, erroneous beliefs, and insensitivity: the power of open debate, disagreement, and exchange of ideas; the power of protest, writing, and speech; and the power of the average person to persuade others, and thusly, for those others to persuade more with the free exchange of ideas. It is this freedom to speak in error and to dissent from error that is the keystone of our legal system: the belief that good will always and inevitably triumph over evil, and that there is no falsehood which can withstand the tides of truth.
I thank my opponent for his continuation of this debate. I will now rebut my opponent's fourth round arguments and rebuttals.
R1. Art in the First Amendment
My opponent stated that "that website cites no legal authority attesting to this". While this is technically true, the function of my previous argument was not recognized by Con. Furthermore, many of the assertions my opponent made are simply incorrect.
First I will address his statement "that website cites no legal authority attesting to this". While the website I used is not a government website, it is a website written by some of the most well versed and informed people in the world of law. To simply discard it is the incorrect action.
The website I used is called "First Amendment Center". Some of its contributors include a dean, a college professor, a scholar, as well as the COO and founder of the Newseum Institute. Ken Paulson,the dean of the College of Mass Communication at Middle Tennessee State University had stated that "the First Amendment has nurtured the arts", stating it as the "most vibrant and diverse in the world".
Now my opponent states that the arts, legally, do not enjoy higher protection. However, I state that this is the goal, not the reality. Obviously, we would like there to be no bias in determining whether or not speech deserves First Amendment protection. However, because of this conclusion , the point that arts do enjoy higher protection cannot be ignored and this factor separates it from comparison.
"It is flatly inaccurate to characterize the paper in Rosenberger as "artistic expression." In that case, the Court never once mentioned "art" or "artistic" at all. 515 U.S. 819, generally. The paper in question was anything but "artistic expression." It was a magazine in which the publishers had included essays on topics such as "racism, crisis pregnancy, stress, prayer, C.S. Lewis' ideas about evil and free will, and reviews of religious music[,] stories about homosexuality, Christian missionary work, and eating disorders" all from a Christian perspective. Id.at 826."
I am unsure how my opponent came to this conclusion. My opponent states that because they are essays from a Christian perspective, they are not art? They are clearly the opinions of the authors, and it is clearly "intended to be contemplated", which fit the definition of art I had stated. My opponent does not state why this is clearly not art. I showed how they fit the definition of art, stated by a dictionary, and therefore is art.
My opponent states that this case is not a true threat by stating more severe cases. However, he makes a fundamental mistake. That severity is factor in determining whether or not something is a true threat. This is not true. We must look at the context of each situation.
Watts V. United States
My opponent states that this situation is more severe. However, he ignores the context of the situation. To explain this, a quote from Supreme Court:Justia will suffice:
"Petitioner's remark during political debate at small public gathering that, if inducted into Army (which he vowed would never occur) and made to carry a rifle "the first man I want to get in my sights is L.B.J.," held to be crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President" 
This threat did not constitute a true threat. Not because it was not severe enough, but because the context was in a political gathering, and it was deemed a political hyperbole. Had Watts gone up to the president and stated the same words, the context would not save Watts, and he would presumably be out of First Amendment protection.I previously stated that "are not part of a political writing, or hyperbole", an assertion that remains uncontested by my opponent. This shows how severity is not a factor in determining whether or not something is a true threat
Virginia v. Black
My opponent states how Virginia v. Black shows how this type of conduct is protected by the First Amendment. However, we must again look at the context. This action was allowed because of the discrimination of the Virginia Statute. I will again provide a quote for Supreme Court: Justia
"that it is analytically indistinguishable from the ordinance found unconstitutional", "that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message."
The action was passed because the statute that prohibited it was found unconstitutional. This was because it selectively chose cross burning exclusively. The context of this shows that the severity of the situation was not the issue, but instead the constitutionality of Virginia statute. The context of this case, separates it from the Old Dominion case.
I will now show a cases that is a true threat, so I can compare it to the case at Old Dominion.
Lovell v. Poway Unified School Dist
This is a case in which a student (Sarah Lovell) threatened to attack an administrator[Linda Suoko]. The student immediately apologized, and stated that her words were inappropriate. Linda Souko had stated "I believe that the tone and manner conveyed by SARAH LOVELL demonstrates a possible future danger". The target was threatened, and despite the lack of a stated intent by Sarah Lovell to carry out the action, it was deemed a true threat, and that disciplinary action was permissible.
Comparatively, the Old Dominion case follows a similar pattern. The targets were threatened. This was proven previously, through the words of Zerlina Maxwell, that they were "literally welcoming students and even their moms, and essentially threatening to rape them". Therefore, the targets were threatened. Both cases included an apology and a lack of a stated intent. However, it was still deemed a true threat in the Lovell case. Following the same line of logic, the writing by the Sigma Nu Fraternity are deemed a true threat, and are out of First Amendment Protection. This would make the Fraternity liable for any disciplinary action inflicted on them.
In conclusion, the context of Watts and Black separate it from the situation at Old Dominion. The comparison to the Lovell case proves that despite the lack of a stated intent, as long as many were threatened, it would still be deemed a true threat. Since the situation at Old Dominion meets this criteria, it is deemed a true threat, opening itself up to disciplinary action, and allowing any disciplinary action to be constitutional.
3.394 U.S. 705 (1969)
5.538 U.S. 343 (2003)
7.847 F. Supp. 780 (S.D. Cal. 1994)
On another note, I would like to congratulate and thank my opponent. This was a riveting discourse, and because of my opponent, it was enjoyable throughout the entire debate. I was forced to research extensively and thoroughly, and I am a better debater because of it.
Again I would like to thank my opponent for this debate