Welcome Back, Topical Thoughts (Bob Overing)

New Season

I’m itching to start the new debate season, and I bet you are too. Loyola and Grapevine are this weekend, along with a few regional openers, which means we’re going to see very quickly what folks have come up with for the new topic: “Resolved: In the United States, reporters ought to have the right to protect the identity of confidential sources.”

I don’t know what to expect. Given the metagame trends last season, we’ll probably see a lot of kritiks and structural violence positions, but what will their content be?  It’s not a criminal justice topic, so prison abolition and mass incarceration positions aren’t viable. It’s not an IR topic, at least on its face, so security and imperialism are out. And it’s not about workers, wages, or unions, so I don’t see big cap K debates happening. This resolution doesn’t give kritik-inclined debaters a whole lot to play with. Maybe biopower, Agamben, or Foucault? Rights talk or legalism? Baudrillard or Derrida? I honestly couldn’t tell you. We haven’t had a media/journalism-related topic in a long time. If K debaters don’t come up with something new and creative, we’ll see either (i) a retrenchment in K debate (perhaps preceded by a shift to less palatable kritiks, which will be beaten) or (ii) an expansion of non-topical K debate:  the aff will be some kind of postmodernism or ‘high theory,’ and the neg will be afropessimism or T/theory. Again and again.

I suspect given the success of many non-topical K teams last season, the latter is more probable. This is unfortunate because those debates tend to involve more recycled evidence (how many times does a team typically update its topicality shell against non-topical affs or cap K shell against identity affs?), less clash (it’s often unclear what the framework for evaluating ‘methods debates’ should even be, plus the 1AC often becomes irrelevant), and more inaccessible jargon (how should the average sophomore know the difference between Warren and Wilderson, much less how Deleuze answers either one?). Like most debates, when they’re good they’re good. Don’t get me wrong — I am more than happy to judge a good K debate, topical or not. But unlike most debates, when they’re bad, they’re really bad. You get debaters who aren’t experts in the literature rambling at high speed in long overviews instead of line-by-line and using unexplained jargon no one in the room understands. Debaters are attracted to K debates for perfectly understandable reasons, but for many debaters (and judges and regions), K debating is a bad fit.

There is an alternative! It’s called debating the topic on both sides. The problem is that this topic is really difficult. Most states already have effective shield laws regularly enforced by courts. And if the core controversy is mostly resolved by state legislatures and lower courts, what is the affirmative supposed to defend?  One might think, as has been the case with some past LD topics, that the affirmative defends the status quo, and the negative must defend a change or shift away from shield laws. This arrangement of burdens is alien to policy debate, but we’ve seen it enough in LD’s past that debaters should consider it a realistic option.

Defending the status quo as the affirmative, however, raises tricky questions in debate theory. How can the affirmative develop advantages to maintaining the status quo without knowing the negative’s proposal for changing it? Does the negative need to defend a clear proposal in the form of a counterplan? How could the NSDA intend that result when counterplans are traditionally barred from LD by its own rules?

On the other hand, the topic could be intended to illicit debates about expanding shield law protections for reporters. Two such options include (i) expanding the scope and uniformity of these laws, e.g. through federal action, and (ii) expanding the protections of these laws, e.g., to cover a wider set of reporters, to narrow the types of cases where exceptions apply, or to weaken those exceptions. If the NSDA intended this to be the topic for debate, they should have made that clear by including federal language or specifying expansion of the right, but these qualifiers are rare in LD resolutions.

While we lack strong language to support the affirmative expansion view, the NSDA wording also gives little indication that the affirmative should defend the status quo. The resolution could have read “reporters ought to maintain the right…” or “reporters’ right … ought not be curtailed.” But we have neither of those; the resolution gives little guidance.

So as the affirmative, you have many decisions to make when constructing your case. Are you defending an expansion in scope or strength of an existing right or merely defending existing rights? Either way, you might want to be ready to answer questions that go to the core of the reporters’ privilege. Is the right absolute or is it conditional such that it can be defeated by exceptions and other trumps in court? If there are exceptions, do they include national security concerns, criminal cases, or cases where there could be imminent harm if the source is not revealed? Further, who is entitled to the right? All persons who gather and publish news or only those who work for news organizations? What about journalists who are eyewitnesses to a crime? Does the type of crime make a difference?

In the past thirteen years, many federal bills addressing the reporters’ privilege have been proposed in Congress, and they often have different answers to these questions. For starters, debaters should research the Free Speech Protection Act and Free Flow of Information Act. Outright defending a proposed bill might go beyond the scope of our topic, but researching them will give you a better sense of the state of federal and state law on the topic, the political landscape, and the issues at stake.

Upcoming Content

I have a few posts in the works. There’s some backlog from last season — we still need to release the unbroken case contest winners and for those of you who participated in my Emory elims study, I will share the results, but I want someone more expert in statistics than I to verify my findings before I publicize them.

I have a longer piece on role of the ballot and K debate coming up too. It won’t be earth-shattering, and given the rest of my blog history, it’s pretty predictable. but I’m hoping it will contribute to the metagame in a meaningful way. Also in the works is an article on 50 states + politics and counterfactual/fiat concerns the strategy raises. I wrote a quick piece this summer on skills improvement in debate that was circulated among our camp attendees and I’ll publish if there’s sufficient interest. Finally, I heard there’s a new Jake Nebel topic analysis floating around that defends extra-topicality as a legitimate strategy, which is puzzling and might merit a response.

If anyone wants to write for our blog this season — especially a Drill of the Week or Debate For All post — reach out!

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