Does grading violate the freedom of speech?

To grade or not to grade:

From the onset, this course has not only involved studying about "speech", but it has also been about "speaking". We have been required to participate in some form of discussion, whether it be one-on-one with the professor, group meetings on Mondays, periodic papers stating one's opinions, or participation in this newsgroup. For the purposes of the issue at hand I am only going to focus on the newsgroup discussion: a) because that is my audience, b) because it can easily be applied to the other forms, and c) because I would like to keep a narrow topic in order to cover it sufficiently (note: I will not even address the issue of whether it is even constitutional for us to be required to participate in discussions, since it is our right to remain silent under the First Amendment). But, I digress. The point of this memo is to introduce the idea that these cases and legal issues we are studying are not just an intangible aspect of history and our legal system, they are our tools for justice. We are studying the history of the freedom of speech not so that we may work within its limitations but so that we may fight for what we believe in and challenge the country and the constitution with our speech, just as others have done before us. Therefore, I propose the question of how fair it is, that in such a learning environment as this, we are graded on the performance of our speech. TA's were told to evaluate our speech based on the following criteria: 1. How regularly we speak 2. Whether or not the speech is forceful 3. Whether we are responsive to others 4. Whether or not we are disciplined 5. Is our speech individual (i.e. unique, opinionated, well-thought out, etc.)

To examine this case we should start by acknowledging its uniqueness: there has not been one quite like this that we've studied. With that in mind I would like to introduce NYT v Sullivan as a case analyses that sets an important precedent. Although we are not dealing with speech that defames, we are dealing with the same risks of preventing speech. In NYT v. Sullivan the main purpose for permitting defamation was to avoid the risk of self-censorship in the future. The Court did not want to set up a precedent in which newspapers refrained from printing criticisms of public figures because they were afraid of the consequences if they were wrong. Justice Brennan said,

" Under such a rule, would-be critics...may be deterred from voicing their criticism, even though it is believed to be true...because of doubt whether it can be proved in court...They tend to make only statements which "steer far wider of the unlawful zone." The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments."

Although we are not criticizing public figures (per se), or being graded based on the truth of our speech, the precedent is the same. (It is the last part of Brennan's quotation that you should consider strongly.) If I am told that my speech is either worhty or unworthy according to the aforementioned criteria, I will inevitably be affected by that. In the case of receiving a good grade for my contribution I will simply continue what I've been doing. What is worrysome, however, is that if my discussion participation has been deemed "C-level", or "D-level", or "F-level", I am not only being told that my speech is not worthy according to the criteria, but I am basically being told that to do well in this class I must refrain from speaking in the same manner and curve my speech to fit the guidelines of the requirement. Although this does not quite measure up to a prior restraint it does act as the deterring factor that Brennan warned us about. Berger also noted in Nebraska Press that "a threat of criminal or civil sanctions after publication chills speech", which directly relates to the issue at hand.

The risk, obviously, is that deliberation, which has already been established as a requirement for the course, may be impeded upon and the value that our class is striving so hard to teach us about will itself be lost, ironically in the process of discussion.

One might say that I have an alternative remedy which is to continue the same form of speech as before without concern for my grade. After all, that is the noble thing to do. However, that alternative remedy would only apply to persons not worried about their grades and there is a risk that speech will still be lost with those students who do care about their grade. Not to mention, that some students may trust the evaluation of their speech and begin to feel worthless themselves about their speech.

Beyond this, there is the fear that such a precedent may lead to worse things than self-censorship. It most likely may lead to a newsgroup discussion in which everyones' posts sound exactly alike, because to disagree may lower your grade. Assigning a value to the speech contributions people make puts a mark on their ideas that is not all that different than making people wear a star on their clothes if they are a certain religion. The risk that people may try to assimilate with the norm to avoid such markings is too great, indeed.

There is one last issue of who is to decide which speech is "A-level" and which is "D-level". It is not difficult, granted, to measure how often a student has participated, but how does one measure whether or not speech is forceful? The subtle lessons and witty insights of one contributor may not be picked up on by another. Also, to be responsive: does that mean we must find somebody else's comments interesting enough to warrant response? The discipline criterion seems to me completely subjective, whereas one student may need it and another may need precisely the opposite. The last criterion is the most dangerous, though. The one that implies that we will be graded on our personality. This not only implies that everyone is not already considered an individual, but threatens that your personality must meet the requirements. You are either an "A-level" or "D-level" personality.

How is this fair, I ask you? You, who today may feel really good about yourself because someone told you your speech is worthy ("A-level") AND you, who may feel pretty down because somebody said your contributions were not as valuable. The latter individual not only feels bad, but must figure out how to speak in the future so that it is pleasing to the "graders", whoever they might be. I contest the grading of our speech on the newsgroup as a violation of our constitutional rights. If we are to remain in this course and attempt to do well academically we must not only adhere to someone elses evaluation of speech, but we must live with their judgment as well. Based on the thinking set forth in NYT v Sullivan and supported in Nebraska Press Ass'n v Stuart, and based on the value of deliberation that this class encourages, as well as the lack of realistic alternative remedies, and finally including the fear of further forms of censorship in the future, I urge you to reconsider your acceptance of this form of evaluation.

Sincerely, Larna MacHutchin

My regards to Larna, for a very impressive argument against the stringent newsgroup grading several of us seem to be up against. I support her argument and would just like to add that the grading has already had a "chilling effect" on me. Earlier today, I read Andy's "unofficial thought" and was glad to see that I wasn't alone in being more than a little disappointed with the newsgroup evaluations. But it crossed my mind that posting the bitter thoughts I wanted to vent would probably irk my "Evaluator," leaving me with a bad mark when it was time to make his end-of-the-quarter comments.

I can respect the value Professor Goodwin places in our participation in this newsgroup. Afterall, this is a class that explores the First Amendment, and the expression of our ideas and opinions are not only good practice for exercising our First Amendment rights, but also a means to apply the arguments we learn in class.

It is the criteria I have a problem with. But I think Larna summed my opinions of the standards of:

1. How regularly we speak
2. Whether or not the speech is forceful
3. Whether we are responsive to others
4. Whether or not we are disciplined
5. Is our speech individual (i.e. unique, opinionated, well-thought out, etc.)
in her argument. I will reiterate that silence, that is, the right not to speak, ought to be valued under the First Amendment. Not all students will find multiple topics that spark the argumentative skills within them each week. Forcing us to choose between a compromise of our grades or a coerced, not particularly enthusiastic (to say the very least) opinion should not be tolerated. Professor Goodwin stated that we need respond/participate in the newsgroup at least once a week, and if this is met, than I feel her value of participation has been met.

Participation also involves the reading of all the postings -- reading through other points of view are just as important as posting our own. I will admit that each student's reading of all the postings is difficult to grade, but maintain that we should not be graded even more stringently to make up for the participation grade.

The grades themselves, at least to me, don't even seem to add up to the overall evaluation. A scattering of Gs, some Ss, several Es, and very few Ns add up to make what? Not only is it ridiculous to grade us on whether we are being "responsive" (what about the people who broach new topics? who are they responding too?), "disciplined," or "individual" (what about concurring points? are similar opinions graded down for being non-inidividual?), but the wide range of actual grades do not add up into any comprehensive reflection of how good or bad our speech is.

In regards to the evaluators, I question their knowledge of what actually goes on in class. Are they grading solely on what they read in the posts? Out of curiosity, do these people come to class? And is the discussion that goes on in class (i.e., arguing the special topics and participating in the general discussions of the lectures) of any relevance to our participation grade?

Like Larna, I ask for a reconsideration of the "acceptance of this form of evaluation." My suggestion is that we are graded on whether we 1) meet the requirement of at least one post per week, and 2) apply arguments and topics discussed in class to our opinions. The effectiveness to which we fulfill this second point is the level of "responsibility" Prof. Goodwin wants us to develop in our opinions.

These changes failing, I have one final question: Is it too late to join the classroom-run discussion section on Monday evenings?

Kara O'Brien

I want to defend, mildly, to one aspect of the grading system reviewed in Larna's eloquent post.

In article lfm531-1202972110360001@dorcas.acns.nwu.edu, lfm531@lulu.acns.nwu.edu (Larna MacHutchin) wrote:

>The last criterion is the most dangerous, though. The one
> that implies that we will be graded on our personality. This not only
> implies that everyone is not already considered an individual, but
> threatens that your personality must meet the requirements. You are either
> an "A-level" or "D-level" personality.

No, the last criterion is not supposed to judge what kind of personality you present, but whether you present one _at all_. Larna accurately described the precise behavior which is _unrewarded_ by this standard:

> a newsgroup
> discussion in which everyones' posts sound exactly alike, because to
> disagree may lower your grade. Assigning a value to the speech
> contributions people make puts a mark on their ideas that is not all that
> different than making people wear a star on their clothes if they are a
> certain religion. The risk that people may try to assimilate with the
> norm to avoid such markings is too great, indeed.

It is an amusing notion quite common in America that we are all endowed by nature with a self, a personality, an individuality. I personally think that having a self is an _achievement_. Making that self evident to other people is an even bigger achievement, and one that the First Amendment is meant (in part) to foster. Remember Cohen's jacket? It was an effortful attempt to stand up to the universe and say "Here I am! This is what I have to say to you!"

Of course, when one stands up to the universe, it's also a good idea to have something to say that's worth it.

Jean Goodwin.

Thanks Larna and Kara for saying something, now I don't feel like so much of a jackass.

Andy McDermott

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