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.