Synthesis

Originating from a country where freedom of speech-- whether expression or action-- is limited, I have come to appreciate learning the fundamentals of freedom of speech in our Communication Rights & Law class. Reading about different cases and getting familiar with different philosophers definitely opened my horizon in terms of gaining knowledge about the freedom of speech here in the United States.

Looking back through my blog posts, I noticed that I am a big believer in freedom of expression. However, if the expression would harm people, create violence and cause breach of peace, then I would not protect it. In my posts, I have enumerated multiple times that an individual has a right to their own beliefs as long as they are not harming anyone. Also, I admit that my posts are not consistent which goes to show that the notion of freedom of speech is really in the eye of the beholder. I think that what is morally or ethically correct to one person might not be to another.

Looking back through my posts and responses, I have failed to back up my arguments with philosophical groundings and this is what I want to dedicate my synthesis on. With my stance on an individual or group being able to express their beliefs as well as themselves, I highly base the foundation of my synthesis to Thomas I. Emerson's: The Expression Action Theory. His theories are as follows: (From Freedom of Speech in the United States)“(1) achieving individual self-fulfillment, (2) discovering truth, (3) making decisions democratically, and (4) achieving a more adaptable and hence a more stable community, maintaining the precarious balance between healthy cleavage and necessary consensus”. (Tedford & Herbeck, 438) Emerson also proposes that the definition of “expression” could become blurry and therefore we must make a distinction whether to label a case “action” or “expression”. He adds on that “Expression must be freely allowed and encouraged” (438) as action can be controlled where areas expression cannot unless demonstrated.

As an extension to Emerson's theory, Zechariah Chafee Jr.'s protecting speech that serves social interest resonates too. Emerson's two types of of expression are individual interest- what's important to me, and social interest- what would help the public have a better knowledge of things. (435)

Both in my Ecce Homo Exhibition/ Jyllands- Posten cartoon case and Westboro Baptish Church posts, I think that Emerson's theories could be highly applied.

For the former post, I protected the Ecce Homo Exhibition and the Jyllands- Posten Cartoons because they were expressions that did not harm. Also, it justified Emerson's 4^th theory of serving balance. As for the latter post, I did not protect the Westboro Baptist Church perhaps because it was a familiar case to me before starting the class. Though the picketers did not cause physical harm to their targets and only voiced their opinions about the homosexual community, I felt like it was an attack and therefore did not look at it as an expression but an action to as a means of attacking a group of people. Also if taken into consideration, they were picketing outside the funerals of fallen soldiers and this was definitely a breach of peace. I know this might be a bias stance due to personal reasons.

The last couple of topics we tackled were Child Pornography and Animal Cruelty. Both topics were on the notion of expression where Chafee's types of expression could be used.

In the child pornography topic, I protected The Tin Drum movie because it was clearly not an act of child pornography due to the considerations that it constituted, one of them being it's a movie and not porn. Though some scenes were offended people, it did not harm them. I believe that being offended and being harmed are two different things. I also protected the Sally Mann's photo collection because I believe that it had an artistic value. Again, it was an expression that did not harm anyone but offended some people. It is something that was of importance to her as an artist and did not mean malice by any means.

For the animal cruelty topic, I protected the United States v. Stevens case due to the fact that Stevens wasn't directly involved in the making of the videos. However, I had difficulties deciding whether to protect the “crush videos”. But in the end failed to protect it as I felt like pleasure was found in hurting animals through people's fetishes on stepping on them.

In regards to my notion of freedom of expression, an interesting clause, the SLAPs value came about. We discussed that applying the SLAPs value would grant First Amendment protection. This to me is still a bit perplexing but interesting at the same time. I understand that if the SLAPs value is given, it would make the speaker come in and defend the case wherein the plaintiff does not expect to win. However, I think that the plaintiff would be confident as the SLAPs value threats the defender thereby having to come up with compelling argument in order to win the case. I am still not quite sure where I stand on applying the SLAPs value. As mentioned before, I believe everyone has a right to their own beliefs and artistic expression. The clause would be able to attend to this. However, if it was always applied, then there would be an overwhelming amount of offensive things surrounding us.

Through this whole class, the saying “each to their own” really captured me. I would protect anyone expressing their beliefs as long as they didn't cause harm or violence due to my peace keeping nature. I also highly value artistic expression though it may be controversial and offensive in some ways. I am also considerate in terms of what may be of no importance to me is something you feel strongly about. I'm also about boundaries. Fact remains, I am still an inconsistent thinker (depicted through my writings) which I think is totally okay.

Animal Cruelty?

In 1999, Congress said that it was a federal crime to produce, distribute and sell images of events where cruelty to animals is showcased. The "crush videos" in particular was what initiated this decision to make such actions a federal crime. The “crush videos” depicted people crushing animals by feet. Pet-abuse.com states “Typically, those crushing will use their buttocks or feet, making this fetish popular amongst many foot fetishists, as crushing by feet is usually the main focus. The foot (barefoot or in shoes) is thus often idolized by someone with a crush fetish.” The Congress looked at this from an animal cruelty point of view.

The case United States v. Stevens in 2005 was a case where Robert J. Stevens engaged in the creation of three videos where it depicted animal cruelty. One of the videos was a footage of a pitbull attacking a pig which was meant to demonstrate of how a pitbull is trained to hunt wild hogs. Two of the videos were again with pitbulls, this time fighting with each other. Stevens didn't get accused of the actual engagement to animal cruelty since he wasn't in the videos and didn't shoot the footage himself. However, he was the narrator/commentator of the videos as well as the distributor and therefore acknowledging him as the author.

Chaplinksy v New Hampshire was used by the government to justify their argument to create a new category for speech that would then be protected under the First Amendment. What the government tried to do with the precedent was to analyze personal versus social interest. As extension to that and as a philosophical grounding, Zachariah Chafee's worthwhile v. worthless speech was also addressed. Chafee's notion was that people have the right to their own personal interest and that it shouldn't be generalized to be extended to social interest. Chafee begs the question “under what circumstances, if any, should speech of total interest be constrained or punished?” (Tedford and Herbeck, 435) Granted, speech that is “worthwhile” to one person could be “worthless” speech to another. Stevens probably wanted to sell these videos not to depict animal cruelty (since it's not people who are hurting the animals but the animals are hurting each other) but to spread knowledge on how animals fight with each other. Stevens also defends himself by saying that animal rights groups use images where animals are hurt for their campaigns and they are not being scrutinized. Just like animal rights groups, Steven probably had a purpose for wanting to show those videos. Eugene Volokh, a First Amendment specialist at the UCLA could attest to this. Through The New York Times, he states “What constitute serious value, is very much in the eye of the beholder”.

In the same NY Times article, it was mentioned that a similar clause to the SLAPs, a clause that we saw in the child pornography cases, was applied to the law. Serious religious, political, scientific, educational, journalistic, historical or artistic value would serve as exceptions if materials contained one or more of these. I understand that it would be hard to apply the above said in order to make Stevens' case an exception. In this case, I would apply C. Edwin Baker's Liberty Theory as a philosophical grounding. Although Stevens wasn't directly involved in the making of the animal fighting footage, he still expressed himself through narrating the videos. But in this case, the “message” being sent is more of a nonverbal expression since the “message” is the fact that videos were being distributed and sold. In Freedom of Speech in the United States, authors Tedford and Herbeck explains Baker's notions and they quote the philosopher, “My thesis is that the first amendment protects a broad realm of nonviolent, noncoercive, nonxpressive activity... nonverbal expressive conduct advances the same values [as verbal expression]... the nonverbal conduct should also be viewed as speech and should receive protection” (Tedford and Herbeck, 441) Through Baker's liberty model, it is suggested that free speech should, verbal or nonverbal should receive full protection as long as it does not incite violence. I don't think showing videos of animal fighting would incite violence. In Pamplona, Spain where Running of the Bulls is held, it is not considered violent but more of a yearly tradition for the Spaniards. Granted, people do get physically injured and hurt but it's their own personal choice to partake in this event.

Finally, if the law protects such a broad realm of freedom of speech, I don't think a new set of laws should be implied to the United States v. Stevens case. Therefore, I would protect Stevens for distributing and selling animal-fighting videos since it does not incite violence to citizens. However as for the “crush videos”, I am not quite sure how I feel about it because I wouldn't know how to apply the SLAPs value because it's an absurd action for me, personally. I understand that people have certain fetishes but it causes harming, in this case-- animals, I don't think I would protect it because it shows human beings killing animals and not an animal killing a fellow animal.

Obscenity v Indecency

Question 3
I believe that the Internet is the closest thing that people have in terms of “full” freedom of speech. Apart from being able to post things online anonymously, the Internet is a different level of media. According to our authors, Tedford and Herbeck, the Internet is different from traditional media such as print and broadcasting in 4 ways: first, anyone can gain access to the Internet with a computer and Internet connection and practice their freedom of speech such as expressing their opinion with no hesitations. Second, the internet doesn't have any gatekeepers with the lack of censorship. Third, minors can lie about their age when accessing an R rated website unlike in “real life” where they are carded upon entering an R rate movie. And lastly, messages said and posted through the Internet has no limitations where they can reach since it is not tangible. (400). In other words, things posted on the Internet can be easily manipulated. In this day and age, with the rise and fame of web cameras and instant messaging services such as Yahoo, MSN and the popular video conferencing, Skype, it has become more difficult to control the Internet as a whole. If an individual has access to a computer and an Internet connection, he or she could post homemade sex videos for the public to see.

In terms of supporting the federal law on banning such materials, I think the extent that I would go to won't be punishing Internet Service Providers (ISPs) for allowing obscene and/or indecent postings. I don't think that it would do much and benefit people in the long run as ISPs are harder to control. However banning materials on a smaller scale is a more achievable goal in terms of regulating materials posted on the Internet.

There are two terms that are important to note and define which are obscene and indecent. It is a bit a hard to distinguish between the two because they tie in together. But with defining them, there is a bit of a differentiation. Indecent material not just deals with the notion of sex but an array of other subject matters that are “offending against generally accepted standards of propriety of good taste; improper; vulgar”. Obscene material (language or image) on the other hand is something that (1) offends morality and indecency at a particular situation (2) causing uncontrolled sexual desire (not limited to pornography).

Under the case Miller v. California, obscenity is not protected by the First Amendment. The case dealt with Marvin Miller who wanted to test what constitutes obscenity. He had sent out a mass mail of advertisements of books that contained sexually explicit material around California. The ads consisted of groups of men and women engaging in various sexual acts. Households who opened the advertisement where offended because they hadn't asked for it and had found the routine obscene. The Court ruled and concluded that obscenity was not protected by the freedom of speech by the First Amendment.

Under the precedent FCC v Pacifica, indecency was defined when a father complained about George Carlin's routine of "Filthy Words" being broadcast on Pacifica Foundation FM one afternoon and being heard by his young son. Pacifica received sanction from FCC for violating FCC regulations. The Court came to a conclusion that the case was not obscene but indecent because as the definition said, it went against “generally accepted standards”.

In the case of Reno v ACLU, it touches upon both indecency and obscenity notions. This was a case wherein the Court voted to strike down anti-decency provisions of the Communications Decency Act (CDA) due to the violation of the freedom of speech provisions of the First Amendment. The CDA was an attempt for minors (under 18) to be protected from explicit materials posted on the Internet. Individual(s) who transmitted the obscene or indecent materials to minors would then be criminalize. However, the Court thought that CDA lacked legitimacy that the First Amendment is asking for that would regulate a speech. In terms of protecting minors from the unmanageable nature of the Internet, I think the CDA had good intentions.

Due to the fact that we are talking about the Internet-- a media that has lack of control in terms of screening things, I'm not very sure if punishing the material as indecent will work. It worked for FCC v Pacifica because the FCC has rules and regulations on what could be broadcast. And if the rules were broken, it is easy to label the behavior or action as indecent as they have set standards of what is decent. But with Internet, there is no fine line between indecency and obscenity. But if I had to choose, I think that I would lean more towards applying obscenity. Since the First Amendment does not protect this, citizens who felt like were victimized by obscene behavior would be protected.

Westboro Baptish Church: Fine line between "beliefs" and prejudice.

Outrage at Funeral Protests Pushes Lawmakers to Act On April 2 2006, a 20-year old marine by the name of Corporal David A. Bass was killed in Iraq. His funeral was held on April 11, however, it was not a peaceful one. Protesters, along with their picket signs stood outside across the street and “celebrated” the Corporal's death. These protesters were from the Westboro Baptist Church in Topeka, Kansas which is primarily lead by the Phelps family with the spokesperson being Shirley-Roper Phelps, Reverend Fred Phelps' daughter. They believed that the soldiers who are doing military service for the country deserved to be killed and believe that it is God's punishment to America for being a nation that condemns and supports homosexuality. Cpl. Bass' funeral wasn't the only funeral that the members of the Westboro Baptist Church protested at. There have been various funerals of fallen soldiers who were killed both in Iraq and Afghanistan that they have demonstrated such protests. Prior to that, the members have also protested outside funerals of people who have died from AIDS because the members of the church believe that it is these people's punishment for being gay. America's Most Hated Family. Some of their signs read “Thank god for dead soldiers”, “God Hates Fags” and “Fags Doom Nation”.

We all know that as an individual, we possess the right to freedom of speech. But once those speeches have turned into a “hate speech”, affect a group of people and disturb the peace, it is when measures should be taken.

Cohen v. California / Chaplinsky v. New Hampshire as precedents:
In 1968, Paul Robert Cohen was arrested for wearing a jacket that said “Fuck the Draft”. In his defense, Cohen said that he did not mean any harm by it, that it was just his personal expression to oppose the war in Vietnam. However, he went against a California law. A law that did not allow any form of bad conduct that would propel a violent act by the speaker or by the people around him. “This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” (Cohen v. California) It was the use of words on his jacket, the way it was projected and communicated to the public that got him in trouble. One of the Constitution's reasoning for not protecting Cohen was “(2)much provocative language does serve the function of communicating both ideas and emotions” (Tedford and Beck 175)

In Westboro's case, their hate protests would certainly not be protected. Members might have been just voicing out what they believed in, just like Cohen. However, a funeral is a sacred moment for the fallen soldiers and their families and the protests serves as a disturbance of peace. These families who have lost their loved ones are dealing with so much emotions as is and hearing chants and seeing hurtful picket signs would just intensify or add on to their emotional state of being even more.

Moreover, the Westboro case highly touches upon the offense and respect theory. In Chaplinsky v. New Hampshire case, Walter Chaplisnky, a Jehovah's Witness preached in the streets of Rochester, New Hampshire that organized religion was a racket. When he was taken to the precinct, he then cursed at a city marshal (someone of authority) calling him a Fascist and saying “You are a God damned racketeer”. Though Chaplinsky did not have any weapon on him to cause physical threat, his speech was not protected because they “incite(d) an immediate breach of the peace” (Tedford and Beck, 170). More importantly, he used offensive language to another person in a public place which was a violation to the public laws of New Hampshire.

Westboro's message might not be solely directed to the deceased but to America as a whole. Nevertheless, they used the deaths of the soldiers as an excuse to rally their hate for homosexuality. Not only were the messages controversial but they are also hurtful, offensive and disrespectful which have already angered many people, especially those families who were mourning for their loss. Surely, this in itself provoke the violation of peace. Although the members' intentions were mostly emotional harm and not physically harm, the receivers of their message could break out and engage in physical harm due to anger thus jump starting the breach of peace.

Furthermore, though the church members used standing far away from where the funeral was being held as a strategy to not “invade privacy”, they were still around the funeral's vicinity and bystanders and people in their vehicles passing by were still able to see them. It wasn't like they were doing these protests quietly, they really wanted to get their message across and be heard.

In conclusion, the protests of the Westboro Baptist Church should not be protected. They are clearly engaging in hate speech that serves as offensive and disrespectful expressions towards a group of people. It is a mere expression on their beliefs and faith but a prejudice towards a certain group. Clear and present danger might not apply however bad tendency does. Using foul and offensive language and messages-- repeatedly outside funerals definitely shows immediate incitement.

Post 1: Ecce Homo Exhibition and Jyllands-Posten Cartoon case

Laws governing communication should primarily be to protect an individual universal civil liberty even if asserted against the group. I think that it would serve balance in governing the rights of people. People's rights are protected but at the same time, they won't be able to abuse their power through creating violence or harming other citizens. Yes, it seems paradoxical-- civil liberty protects your rights but you can't use them to the fullest extent. But I think that other private citizens also have the rights to be protected. So for me, this law comes in two-folds, freedom to do what you want and get your message across but with the notion of peaceful freedom, thus other citizens are protected as well.

I would protect the speakers who created the speech in “Ecce Homo” Exhibition and Jyllands-Posten Muhammad Cartoons.

For the Ecce Homo, I believe that is a form of art expression and not degrading Christianity. Art is a freedom of speech just as paintings, music, etc. are. Article 19 of The Universal Declaration of Human Rights states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Perhaps Elisabeth Ohlson Wallin wanted the LGBT community to be heard and by doing this through a very controversial exhibition, they surely got heard, without the intention of harming others. This case supports the law I sided with above. Sure, it might have affected other citizens however it did not harm them in any way. And it wasn't just the private citizens who got affected, some of the LGBT community questioned this satire stating their concerns about being degraded or stereotyped. I think that is on the individual's discretion whether they want to view the exhibition or not. If you think it is going to negatively affect you, then don't go. If you're curious to see the exhibition, then go but don't speak negatively of it or do something to sabotage the peacefulness of the exhibition-- nobody said you had to go and see it. Some found it sacrilegious and that's okay too. Everyone has a right to their own opinion. If an individual had a strong belief in Christianity, I don't think it would make his or her faith in the religion any less. The fact that the exhibition was held in churches says a lot about how it was accepted by the people.

As for the Muslim cartoons by Jyllands-Posten Muhammad Cartoons, I think that the cartoons didn't mean any harm, initially. I think that it was an innocent attempt to put humor in political issues, mainly for the Danish population. But inevitably, Muslim followers would get offended because their prophet Muhammad was used for the criticism of Islam in cartoon form (just how the sacred biblical situations for the Ecce Homo case was portrayed in a different light). Number two of Article 27 of The Universal Declaration of Human Rights states “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The cartoonists have the right to be protected as long as they don't cause harm to others. And I think it wasn't their intention to cause riots and chaos. On the contrary, Muslim followers possess the rights to feel protected and not discriminated against. For me, the publication of the cartoons was fine. Perhaps if those who were offended found out first hand what the cartoons represented or what the Danes were trying to interpret, massive chaos could have been prevented. However, because of the ripple effect on chaos that it had unfortunately caused, the Danish paper and Muslims who were affected, offended and even harmed by it should find a common ground to resolve the issues and controversies. Both parties have the right to exercise their freedom of speech but in a harmonious manner and considerate manner.

In conclusion, I believe that as an individual citizen, you take what you see from a situation. More or less, you come out from that situation with a certain perspective. If you feel that what was demonstrated was wrong in any way, you have the right to your own opinion and even voice it out. But for the sake of other people's protection, the exercise of free speech should be in a considerate way where nobody would get harmed. For me voicing out an opinion is very important as long as it's done in a civilized manner. Voicing out an opinion, for me, is not a form of aggressiveness but a way to make things right. Number two of Article 29 sums it up very well: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. "