Coming into CMJR494: Communication Rights and Law, I really didn’t think too much about the freedom of speech. However, through the class and learning about different philosophies, precedents and cases, and other laws and regulations, I think that I have finally found a more solidified stance on my perspective of freedom of speech.
The philosophers that I feel like I fall back on, in the big picture of the freedom of speech, involves Emerson and Baker. Thomas I. Emerson, a Professor of Law at Yale, promoted his philosophy of expression v. action theory, in which expression gains absolute protection, and action, when a treat, receives no protection. Emerson believed in the freedom of expression, in which the opinions of others, the rights to inquire, reasonable access to information, and the rights of assembly and association were important. The system of freedom of expression that Emerson supported also included “achieving individual self-fulfillment, discovering truth, making decisions democratically, and achieving a more adaptable and hence a more stable community of maintaining the precarious balances between healthy cleavage and necessary consensus” (Tedford, 438).
Part of my freedom of speech perspective comes largely from Emerson because I truly believe in protecting free speech as a very important right. In agreement with his theory, I think that freedom of expression should include the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses. It also includes the right to hear opinions of others, the rights to inquire, access to information, and the rights to assembly and association. For example, when it comes to a case such as Ali Al-Timimi, I absolutely think that his speech should go unpunished as expression, which Emerson would agree with. I also find myself very drawn to Emerson’s philosophy when coinciding with my own perspective of freedom of speech because I often find myself citing Cohen v. California in my analyses and responses, which is a perspective that I completely agree with. Cohen v. California used Emerson’s philosophy in the outcome of the case and the precedent set in it. Cohen wore a jacket that said “Fuck the Draft” on the back of it in an L.A. County Courthouse. He was arrested for maliciously disturbing the peace by offensive conduct. However, Cohen’s speech was protected because his speech was expression, not action, and when it comes to expression, it’s impossible to define what words are acceptable and which are not. Because provocative language communicates both ideas and emotions, for a government to try to prohibit certain words would mean risking suppressing ideas, which is a slippery slope that we just don’t want to and can’t go down when freedom of speech is the issue. This is also a reason why I don’t go to the offense theory – because that which is offensive to some cannot be simply prohibited or punished, because it would quickly eliminate many forms of freedom of speech and expression.
Another philosopher who I often find myself thinking about when I consider freedom of speech issues is C. Edwin Baker, a professor of law at the University of Pennsylvania. Baker’s philosophy doesn’t think that the freedom of speech is primarily a means to a marketplace of ideas, truth, or democracy as other philosophers do. Instead, Baker believes that the liberty of speech is integral to individual self-fulfillment and needs to be treated as a universal right of human dignity. He supports this with his Liberty Theory, in which the First Amendment protects a broad realm of non-violent, non-coercive, expressive activity, verbal and nonverbal. This theory has two main key values – that of self-fulfillment and participation in change. They are founded on a respect for individual autonomy and equality and imply a notion of freedom toward self-realization and self-determination. This includes artistic expression and expressive conduct. The liberty model does not protect violent or coercive expression that undermines another’s will or causes direct and actual harm, which is why I take the harm – incitement theory as a large part of my freedom of speech perspective. Baker really holds the freedom of speech as a priority, except when it’s needed to control unprotected conduct, which includes violence, coercive activity, or violates the rights of others.
Thus, based on these philosophies of Emerson and Baker that I find I most agree with in terms of freedom of speech rights, I would have to consider myself someone that takes on the perspective of “that which promotes individual self-fulfillment.” Backed up by these theories would be the cases of Cohen v. California (1971) and Brandenburg v. Ohio (1969), which I will explain further.
I often cited the precedents set in Cohen v. California and Brandenburg v. Ohio when analyzing different cases and taking a stance on the freedom of speech. In Cohen v. California, Cohen wore a jacket into an LA County Courthouse that said “Fuck the Draft” on the back of it, and was arrested for maliciously disturbing the peace by offensive conduct. However, Cohen’s speech was protected and he was not punished for his speech because Emerson’s action v. expression theory was used in the outcome of this case. In this situation, Cohen’s shocking speech was deemed as expression, which is protected, and not threatening action, which is not protected. It is impossible to define which words are acceptable and which are not because to prohibit provocative language, which communicates both ideas and emotions, would be prohibiting certain works and risking suppressing ideas. I used this case quite a bit in my analyses because I truly believe that the suppression of the freedom of speech cannot be content-based and cannot suppress something just because it is provocative or offensive, or else too many things would be prohibited or punished.
I also use Brandenburg v. Ohio (1969) in my own freedom of speech outlook. In this case, Brandenburg was arrested for words spoken, that he will have to take revengence, in front of a burning cross. The precedent set in this case was that the speech must incite imminent and immediate violence to be punished and that a government’s action must be subject to strict scrutiny. The outcome was that Brandenburg was protected. This case aligns with Baker, in that speech would be unprotected if it creates direct and actual harm or incites violence or violates the rights of another.
Thus, I would have to not fall back on the citizen respect theory of the offense theory, because as in Cohen v. California and Emerson’s philosophy, you cannot prohibit that which is “offensive” or “disrespectful” simply because it is these things – it would lead to a slippery slope and to prohibit or protect speech that does these things would risk suppressing ideas, emotions, and other expressions. Instead, I would side with the incitement/harm theory in which speech would be unprotected when it is harmful to another, and more importantly, incites imminent and immediate violence or harm, which is in agreement with Brandenburg v. Ohio as well as with the philosophy of Baker.
In addition, due to my freedom of speech perspective which I have taken a consistent approach to in this regard, I would have to subject any government action that would risk infringing upon the freedom of speech or expression to a strict scrutiny analysis. In other words, the government must prove that it has a compelling reason to regulate or punish the speech and that the restriction is not overly broad or vague and that it advances government interests. In alignment with the philosophers, theories, and cases that I agree with, this would also line up with them because strict scrutiny would be applied when the freedom of speech is held as a priority, but punished only if immediate danger or true threat seems very imminent or when direct incitement of illegal conduct is both very likely to occur and to occur imminently and immediately (incitement theory which I held along with the harm theory in the paragraph above). I take this approach because I believe that the freedom of speech and expression is a fundamental, universal, explicit First Amendment constitutional right which must undergo strict scrutiny if in consideration to be punished or prohibited. In this regard, when it comes to a libel case, I believe that the responsibility or burden of proof does not fall on the speaker, but those accusing the person who created the speech.
I don’t think that the freedom of speech varies depending on where you are, but that it is a fundamental right that all human beings should be allowed. I do, however, waiver when it comes to such speech as child porn or animal cruelty, particularly such things as crush videos. When it comes these issues, I think that I would have to many times go against what I believe in my freedom of speech perspective and say that these are unprotected forms of speech, but would apply a SLAPS clause and protect the speech if it has social, scientific, artistic, political, journalistic, historical, etc. values to it. To be honest, I am not sure what this really means for my personal belief on freedom of speech rights and am still struggling with it. The reason I struggle is because this stance would take on several perspectives that I’ve disagreed with previously, such as the citizen respect theory and the offense theory. However, the reason I would perhaps still punish or prohibit these types of speech would be if they don’t fit the SLAPS clause and that I can consider them as commercial speech, which Baker does not protect because according to Baker, commercial speech such as advertising and other similar forms of commercial expression are based on profit motive rather than on individual liberty, which does not deserve constitutional protection according to Baker. Yet, I think that I am still torn on this subject and it confuses me quite a bit – it has thrown quite a wrench into my freedom of speech perspective, so to speak.
Overall, the majority of my freedom of speech perspective is due to the philosophies of Thomas Emerson and Edwin Baker, the cases of Cohen v. California and Brandenburg v. Ohio, and the harm and incitement theories, but not the offense or citizen respect theories. However, I think that although this makes up a large part of my perspective, that I am, as always, a student and while continuing to take in new information and educate myself, I find that my perspective and freedom of speech stance is constantly shifting and changing, even if just in small increments. Either way, while I have seemed to stick with these philosophies, cases, and theories, I am open to all different perspectives and welcome new ones to only further or to better create my stance on the freedom of speech. Thus, to me, communication justice is taking on a freedom of speech or communications stance or perspective, but through knowledge and education and critical awareness, being open to new ideas and being to change your opinion on what’s right based on new information, and to not be afraid and not keep yourself changing your opinions and stances just because you are comfortable with it or for fear of relinquishing that which you know.
Saturday, March 13, 2010
Friday, March 12, 2010
Analysis on Animal Cruelty -- Overturning the Law
I would uphold the law Congress passed particularly when it comes to crush videos and acts of severe animal cruelty. However, I don’t think that this would hold and that based on what we have learned, that I would have no choice but to overturn the law Congress passed. I would do this when considering the precedents set in Cohen v. California. In this case, the videos of animal fighting were expression, not action, and expression is to be absolutely protected. Provocative and challenging material often expresses ideas and emotions, and to suppress that is to suppress ideas, and as we have learned, we cannot punish speech and violate the First Amendment rights due to a bias or based on content. This would lead to a very slippery slope that we don’t want to go down when considering speech that has to do with the freedoms of speech and expression. In addition, in the precedents set in R.A.V. v. St. Paul (1992), the government cannot practice content-of-message discrimination punishment, such as specific fighting words based only on race, religion, gender, and creed, without prohibiting all fighting words in general. But this prohibition would be too overly broad and purges the public debate of too much speech that should be protected. Thus, based on this precedent, the law would need to be overturned because it is discriminating based on content. Also, consider Brandenburg v. Ohio and the fact that this speech does not incite immediate and imminent harm or illegal activity, as with the precedent set in that landmark case.
I would also state that this law would need to be overturned because while the state statutes prohibit the action, section 48 prohibits the speech. And while I completely agree in prohibiting acts of animal cruelty, the speech could potentially fall under the SLAPS clause. It could have artistic value in documentaries and showing something that is legal in many other countries. It could also have political value in that anti-animal cruelty organizations, like PETA, could be fighting against animal cruelty by using such animal fighting videos to their advantage. In considering Chafee’s worthwhile v. worthless speech, this could be considered worthwhile speech, as it holds SLAPS value, most likely artistic, political, educational, journalistic, or historical, and thus could hold some social value. This would allow the speech to be proven as worthwhile speech. Some may still consider it to be considered worthless speech as it depicts acts of animal cruelty, so I think that Meilkejohn’s theory of protection for political speech should also be considered in that political speech that concerns the general welfare is absolutely privileged. In addition, once again, expression v. action should be part of the debate as the speech is an expression, not an action – in other words, the film was expression of the speech, but was not actually acting in hurting the animals
I would also have to choose to overturn the law because it involves the possible violation of an explicit, fundamental First Amendment right, and thus would have to fall under strict scrutiny analysis. However, I don’t think that the law could pass strict scrutiny analysis because the speech that §48 addresses warrants very strong legal sanctions. There have been state statues put in place condemning and prosecuting the acts of animal cruelty and target the actual conduct that offends the sensibilities of most citizens, but punishes the conduct, not necessarily the speech. §48 does not federally criminalize the conduct itself, but prohibits the creation, sale, or possession of a depiction of animal cruelty – this has First Amendment rights implications and would most likely not stand up against strict scrutiny analysis, like United States v. Williams did not. In other words, the Supreme Court recognized the governmental interest in protecting animal rights from cruelty, but animal rights do not supersede fundamental human rights. The government can and does protect animals from acts of cruelty, but to make possession or creation of films of such acts illegal would infringe upon the free speech rights of those possessing the films, and would not stand up against strict scrutiny as it would infringe upon the explicit, fundamental, constitutional First Amendment right of freedom of speech and expression and a content-based restriction on speech is “presumed invalid.”
Thus, overall, as much as I would like to uphold the law, I find more reason, based on past precedents and philosophies, to overturn the law and allow the speech.
I would also state that this law would need to be overturned because while the state statutes prohibit the action, section 48 prohibits the speech. And while I completely agree in prohibiting acts of animal cruelty, the speech could potentially fall under the SLAPS clause. It could have artistic value in documentaries and showing something that is legal in many other countries. It could also have political value in that anti-animal cruelty organizations, like PETA, could be fighting against animal cruelty by using such animal fighting videos to their advantage. In considering Chafee’s worthwhile v. worthless speech, this could be considered worthwhile speech, as it holds SLAPS value, most likely artistic, political, educational, journalistic, or historical, and thus could hold some social value. This would allow the speech to be proven as worthwhile speech. Some may still consider it to be considered worthless speech as it depicts acts of animal cruelty, so I think that Meilkejohn’s theory of protection for political speech should also be considered in that political speech that concerns the general welfare is absolutely privileged. In addition, once again, expression v. action should be part of the debate as the speech is an expression, not an action – in other words, the film was expression of the speech, but was not actually acting in hurting the animals
I would also have to choose to overturn the law because it involves the possible violation of an explicit, fundamental First Amendment right, and thus would have to fall under strict scrutiny analysis. However, I don’t think that the law could pass strict scrutiny analysis because the speech that §48 addresses warrants very strong legal sanctions. There have been state statues put in place condemning and prosecuting the acts of animal cruelty and target the actual conduct that offends the sensibilities of most citizens, but punishes the conduct, not necessarily the speech. §48 does not federally criminalize the conduct itself, but prohibits the creation, sale, or possession of a depiction of animal cruelty – this has First Amendment rights implications and would most likely not stand up against strict scrutiny analysis, like United States v. Williams did not. In other words, the Supreme Court recognized the governmental interest in protecting animal rights from cruelty, but animal rights do not supersede fundamental human rights. The government can and does protect animals from acts of cruelty, but to make possession or creation of films of such acts illegal would infringe upon the free speech rights of those possessing the films, and would not stand up against strict scrutiny as it would infringe upon the explicit, fundamental, constitutional First Amendment right of freedom of speech and expression and a content-based restriction on speech is “presumed invalid.”
Thus, overall, as much as I would like to uphold the law, I find more reason, based on past precedents and philosophies, to overturn the law and allow the speech.
Sunday, March 7, 2010
Analysis #6, Question 2
2. Construct an argument in which you either protect or punish The Tin Drum. Do you consider its scenes to be “child pornography?” (Be specific about which scenes). Will you change the definition of “child pornography” so that someone can defend themselves by arguing that the movie is “art” or that the movie should be “taken as a whole” rather than punishing its objectionable parts or that the movie as a whole be “patently offensive.” Use both philosophical and doctrinal lines of reasoning.
The Tin Drum is a film about the life of Oskar Matzerath, with the capacity to think like an adult, but remains in the physical stature of a child. We view the film at the stage where Oskar is a stunted 16 year old and has a love affair with his 16 year old nanny/babysitter, played by a 24 year old actress.
Overall, I would punish The Tin Drum as child pornography, as I think that although one could consider the film as "art", that when it comes to something like child pornography, that the most extreme scene should be what is analyzed, and not necessarily the film as a whole. I think it is completely acceptable to punish the objectionable parts of the film or as a whole to be "patently offensive."
In the scene where Maria is first introduced with the cabbages, the scene where Maria is seen tucking Oskar in, praying with him, and playing the harmonica, and the scene on the beach (albeit uncomfortable) I think are all completely acceptable scenes and shouldn't be punished. I don't necessarily see anything particularly lewd or obscene in them. Although the beach scene with the fizzy candy powder is uncomfortable to sit through, I don't see it crossing the line into child pornography. Even the scene where Maria undresses Oskar in the changing room at the beach I find to be acceptable, as she takes on an authoritative, motherly role and isn't undressing him indecently or inappropriately -- in other words, not sexually. However, the scene quickly changes to what I would punish as child pornography, when suddenly Maria displays herself suggestively and Oskar buries his head in her crotch. This, along with the bed scene where Oskar goes down on Maria and eventually have intercourse together, I would deem as child pornography and and that the film as sexual speech should be punished.
In punishing this film as child pornography, I would apply the definition of the Child Pornography Prevention Act of 1996 which struck down some precedents set in Ashcroft v. Free Speech Coalition (2002) in that a visual depiction of sexually explicit conduct is prohibited. In The Tin Drum, a minor, or the 11 year old child actor, engages in sexually explicit conduct as it is simulated in the film. The film should also be punished when considering the precedents set in New York v. Ferber (1982) in which the obscenity definition changes from Miller v. California (1973) so that under New York v. Ferber, (1) material need not be found to appeal to prurient interest of the average person, (2) sexual conduct need not be portrayed in a patently offensive way, and (3) material at issue need not be considered as a whole. In this precedent, The Tin Drum would be punished as it would not need to be considered as a whole and could be considered and analyzed scene-by-scene, and so SLAPS wouldn't necessarily apply here.
I would also apply Chaplinsky v. New Hampshire and, thus, Zechariah Chafee, in the philosophical notion of "worthwhile" v. "worthless" speech. Because under New York v. Ferber we can analyze scene by scene, under Chaplinsky v. New Hampshire the two scenes which I referenced as punishable would be seen as "lewd and obscene", and thus under Chafee, would be seen as worthless speech and would receive no free speech protection under Chaplinsky v. New Hampshire. I would also say that under Chafee, that to punish The Tin Drum would also be seen as a matter of public safety, rather than the search for truth, and that the great interest in free speech would be sacrificed as the matter is within the interest of public safety and its impairment.
Thus, I would punish The Tin Drum because under the precedents stated, the film would not need to be taken as a whole and could in fact be analyzed scene-by-scene, thus under the precedents stated, The Tin Drum would fall under the category of being lewd and obscene, and goes against the Child Pornography Prevention Act of 1996 as a child is seen to be simulating sexual conduct. Under Chaplinsky, it would be seen as worthless speech. And under the definition of child pornography, since The Tin Drum shows a visual depiction of a person under the age of 18 engaging in sexually explicit conduct, simulated or real, and that the child does not have to be naked, the film would be considered child pornography.
Although I realize that the film is a coming-of-age film and somewhat of a bad twist on Peter Pan and that it could have some SLAPS value, I think that SLAPS mostly applies to sexually explicit material in general. However, in the case of child pornography, the situation needs to be analyzed a bit more carefully and that the more strict precedents against child pornography should be considered. Consider the way children and violence portrayal used to be treated -- as outrageous and obscene. However, the more depictions of it that came out, the more comfortable we all became with seeing it, until it has become what it is today -- completely acceptable, barely even thought of as negative. This is something we don't want to see happen to children and sexually explicit and exploitative acts. It's not something that I think should only occur with children, but that any intensely graphic and/or violent sexual act, including scenes of rape, should be unprotected and punished forms of speech. Although the characters of the film were supposed to be of the same age, I think that the most extreme age difference should be applied in these cases. For example, if the actor was 16 but played and passed as an 11 year old, and the actress was 16 playing a 16 year old, I would still consider this as child pornography as even though the actor was 16, the visual depiction would have been of an 11 year old. I would also punish the speech as it is -- with an 11 year old playing a 16 year old, and a 24 year old playing a 16 year old.
Thus, I would punish The Tin Drum and categorize it as child pornography because of the lewd and obscene scenes in it, that can be viewed and analyzed in terms of child pornography scene by scene, and does not need to be taken as a whole when considering the precedents stated above, because there are scenes of simulated sexual conduct with a child. I think that the more extreme or strict precedents should be considered in cases of child pornography and that it is not something that we want to take lightly, as letting one depiction of this go will lead to it being more viewed, more common, more comfortable and more accepted, which is a slippery slope that we do not want to go down.
The Tin Drum is a film about the life of Oskar Matzerath, with the capacity to think like an adult, but remains in the physical stature of a child. We view the film at the stage where Oskar is a stunted 16 year old and has a love affair with his 16 year old nanny/babysitter, played by a 24 year old actress.
Overall, I would punish The Tin Drum as child pornography, as I think that although one could consider the film as "art", that when it comes to something like child pornography, that the most extreme scene should be what is analyzed, and not necessarily the film as a whole. I think it is completely acceptable to punish the objectionable parts of the film or as a whole to be "patently offensive."
In the scene where Maria is first introduced with the cabbages, the scene where Maria is seen tucking Oskar in, praying with him, and playing the harmonica, and the scene on the beach (albeit uncomfortable) I think are all completely acceptable scenes and shouldn't be punished. I don't necessarily see anything particularly lewd or obscene in them. Although the beach scene with the fizzy candy powder is uncomfortable to sit through, I don't see it crossing the line into child pornography. Even the scene where Maria undresses Oskar in the changing room at the beach I find to be acceptable, as she takes on an authoritative, motherly role and isn't undressing him indecently or inappropriately -- in other words, not sexually. However, the scene quickly changes to what I would punish as child pornography, when suddenly Maria displays herself suggestively and Oskar buries his head in her crotch. This, along with the bed scene where Oskar goes down on Maria and eventually have intercourse together, I would deem as child pornography and and that the film as sexual speech should be punished.
In punishing this film as child pornography, I would apply the definition of the Child Pornography Prevention Act of 1996 which struck down some precedents set in Ashcroft v. Free Speech Coalition (2002) in that a visual depiction of sexually explicit conduct is prohibited. In The Tin Drum, a minor, or the 11 year old child actor, engages in sexually explicit conduct as it is simulated in the film. The film should also be punished when considering the precedents set in New York v. Ferber (1982) in which the obscenity definition changes from Miller v. California (1973) so that under New York v. Ferber, (1) material need not be found to appeal to prurient interest of the average person, (2) sexual conduct need not be portrayed in a patently offensive way, and (3) material at issue need not be considered as a whole. In this precedent, The Tin Drum would be punished as it would not need to be considered as a whole and could be considered and analyzed scene-by-scene, and so SLAPS wouldn't necessarily apply here.
I would also apply Chaplinsky v. New Hampshire and, thus, Zechariah Chafee, in the philosophical notion of "worthwhile" v. "worthless" speech. Because under New York v. Ferber we can analyze scene by scene, under Chaplinsky v. New Hampshire the two scenes which I referenced as punishable would be seen as "lewd and obscene", and thus under Chafee, would be seen as worthless speech and would receive no free speech protection under Chaplinsky v. New Hampshire. I would also say that under Chafee, that to punish The Tin Drum would also be seen as a matter of public safety, rather than the search for truth, and that the great interest in free speech would be sacrificed as the matter is within the interest of public safety and its impairment.
Thus, I would punish The Tin Drum because under the precedents stated, the film would not need to be taken as a whole and could in fact be analyzed scene-by-scene, thus under the precedents stated, The Tin Drum would fall under the category of being lewd and obscene, and goes against the Child Pornography Prevention Act of 1996 as a child is seen to be simulating sexual conduct. Under Chaplinsky, it would be seen as worthless speech. And under the definition of child pornography, since The Tin Drum shows a visual depiction of a person under the age of 18 engaging in sexually explicit conduct, simulated or real, and that the child does not have to be naked, the film would be considered child pornography.
Although I realize that the film is a coming-of-age film and somewhat of a bad twist on Peter Pan and that it could have some SLAPS value, I think that SLAPS mostly applies to sexually explicit material in general. However, in the case of child pornography, the situation needs to be analyzed a bit more carefully and that the more strict precedents against child pornography should be considered. Consider the way children and violence portrayal used to be treated -- as outrageous and obscene. However, the more depictions of it that came out, the more comfortable we all became with seeing it, until it has become what it is today -- completely acceptable, barely even thought of as negative. This is something we don't want to see happen to children and sexually explicit and exploitative acts. It's not something that I think should only occur with children, but that any intensely graphic and/or violent sexual act, including scenes of rape, should be unprotected and punished forms of speech. Although the characters of the film were supposed to be of the same age, I think that the most extreme age difference should be applied in these cases. For example, if the actor was 16 but played and passed as an 11 year old, and the actress was 16 playing a 16 year old, I would still consider this as child pornography as even though the actor was 16, the visual depiction would have been of an 11 year old. I would also punish the speech as it is -- with an 11 year old playing a 16 year old, and a 24 year old playing a 16 year old.
Thus, I would punish The Tin Drum and categorize it as child pornography because of the lewd and obscene scenes in it, that can be viewed and analyzed in terms of child pornography scene by scene, and does not need to be taken as a whole when considering the precedents stated above, because there are scenes of simulated sexual conduct with a child. I think that the more extreme or strict precedents should be considered in cases of child pornography and that it is not something that we want to take lightly, as letting one depiction of this go will lead to it being more viewed, more common, more comfortable and more accepted, which is a slippery slope that we do not want to go down.
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