Synthesis

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.