Sexuality is innately human—an inherent a carnal desire played out by even the most conservative. The way in which we express our innermost sexual desires varies from person to person. With the advent of new technology it has become increasingly easier to transmit sexual messages with the intent to arouse. At its foundation sexual interaction is something very personal. The way in which human beings interact with each other depends largely on cultural and familial upbringing. Alternatively, the way in which society handles sexual interaction has become less personal and more controlled. Controlling of sexuality is not something new. For centuries women have been controlled in order to suppress sexual desire, arousal and pleasure. The culture in which we live is so negatively driven when it comes to sex. It has been engrained as something shameful, hurtful and embarrassing. The only reaction to this public shame is to move to a medium with a veil of secrecy.
Because of so many new outlets in which we can express ourselves, the negative sexual atmosphere has been alleviated. People are now able to interact behind a veil of secrecy while still expressing their sexual desires. Whether this comes in the form of a webcam, texting or online photos there is an outlet not once offered to millions of people. It is with this understanding that I argue these sexual mediums are at its foundation personal. There is no room for the suppression of freedom of expression within the home. What is deeply personal should be protected. Sexuality is not dictated by the state. Stanley v Georgia states that in the privacy of ones own home, the government has no right to infringe on what he/she decides to do when it comes to sexual material. Privacy plays an important factor in the freedom of speech in this case. For erotica material, privacy translates to freedom. In the opinion of the Supreme Court Justice Marshall states that “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitution heritable rebels at the thought of giving government the power to control men’s minds” (Stanley v. Georgia). This is to say that the government should operate under the notion that individual choice of consumption is inherently tied to the first amendment. Just as church and state have traditionally been separated, the government implies that the state should have little involvement with ones personal life inside the home—a place with no captive audience or direct harm to others.
Material is not indecent or obscene if it is communicated between two consenting individuals. Self-gratification theorists like Haiman would suggest that individuals will be in the best judgment of their interests. This is to say people will seek out that in which they wish to entertain themselves. The internet is a location in which people have ample opportunity to steer away from content. Same with cell phones and other technological devices. It takes a user to search and interact with content.
According to the FCC v. Pacifica Foundation in 1978, indecent speech was defined as “language that describes, in terms patently offensive as measured by community standards for the broadcast medium.” There are a couple key things to point out from this landmark decision. First and foremost, when it comes to personal sexual arousal with the use of technology—pornographic material, “sexting,” webcamming, etc—there is little to no community standard which can be applied. A community standard implies that this is a communal decision or something, rather, that affects the community at large. When we discuss personal technological sexual arousal, we refer primarily to interactions between two consenting individuals. It is an action they have taken, thus exposing only themselves to any and all sexual material.
Again, Stanley v. Georgia states that “A state has no business telling a man, sitting alone in his own house, what books he may read or films he may watch.” The same applies to all technological sources. Like the book, the internet, webcam and cellphone all have a personal responsibility attached with them. This is to say that unlike the television there is the immense opportunity for consumers to decide the information in which they want to consume. We do not have to be forced to view pornographic material on the internet nor do we not have a choice in webcamming in a sexual manner.
It is important to cite the landmark case of Reno v. ACLU in 1997—the first case concerning cyberspace and free speech. In the decision the court clearly ruled that the internet deserved the utmost amount of protection. The court stated that “governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.” Like Milton, the theory of the marketplace of ideas –even though sexually based—is encouraged and deserves to be honored precisely because it is individualistic in nature. Sexual imagery is an important addition to the marketplace of ideas as it is a topic that relates directly to the most human aspect of who we are—our sexuality. As stated, we live in a sex-negative culture. We all need a greater understanding that technology allows us to create an atmosphere of decreased stigmatization. With this said, I would propose increasing Stanley v Georgia to include the protection of sending and receiving obscene live webcams. The fact of the matter is, these videos being sent are often between two consenting individuals. They are rarely ever forced and even if they were, individuals have the option of blocking such material. We have choices as to what we consume. Furthermore, the definition of what is considered obscene is completely subjective. Community standards don’t even apply, as sexuality is inherently something very personal and individualistic.
There is no incitement of danger in sexting or webcamming nor does it prove any indecency or obscenity if it is between two consenting parties who are of-age. It may in the sense that ethically people may not agree with it, but what it comes down to is an individual right—expressed in both Stanley v. Georgia and Reno v. ACLU. I would advocating expanding the former in hopes that the government take even less of a position in regulating what individuals do inside their homes. The promotion of sexual identity and freedom will only serve to strengthen the first amendment and the freedoms it guarantees people. The first amendment does not stop at safe, consensual and important sexual expression.
Friday, October 23, 2009
Friday, October 9, 2009
Protect His Speech: The Case for Al-Timimi
The United States v. Ali Al-Timimi is a complicated case in the protection of free speech. To a certain extent the argument is representative of a larger societal problem—the appropriateness and protection of voicing dissent against one’s government. Does this case exemplify unjust reaction to vocal dissent? Or, rather, based on the decision does vocal action often lead towards intent to harm? It is highly debatable as to whether or not Al-Timimi’s vocal dissent was intended to cause direct and unlawful harm to the United States.
Using the landmark case of Brandenburg as historical precedent, I will argue that the immediate and imminent incitement standard applies to Al-Timimi’s case. While many would argue that based on the information presented in the case Al-Timimi’s sentence was justified, I will argue that given the circumstances—both content, environment and time—his conversation was protected under the first amendment. Therefore the conviction is unconstitutional and in direct opposition to a landmark case which clearly established that the voice of dissent—perhaps not always favorable—is protected. This is a tough position to argue given the evidence, but one that deserves special attention if we are truly scrutinizing the first amendment.
According to the Brandenburg case, “even threatening speech is protected, said the Court, unless the state can prove that the ‘advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (Brandenburg v. Ohio, 1969). Granted, there is significant evidence which suggests that the individuals Al-Timimi talked to on September 16, 2001 did indeed travel to Afghanistan within the following days. However, and this is where one must recognize protection of Al-Timimi—the actions of the Muslim men after the conversation have little to no allegiance to Al-Timimi and his words.
One must put into perspective the timing of this incident. The atmosphere of the country post-9/11 was less than supportive for the Muslim and Middle Eastern populations. President George W. Bush himself made it clear through his rhetoric that “these people” would face severe consequences for their actions. What was meant to be an indictment against the 9/11 hijackers specifically became a way in which Americans began to criminalize the Middle Eastern population as a whole.
For Muslim populations both emotions and fear were high following the 9/11 terrorist attacks. It would seem completely plausible that Al Timimi’s speech was a reaction to the reaction. When one is placed in a position of the “Other,” often times the most immediate response (and this was immediate—a total of 5 days after the attacks) is to respond with anger. Language is powerful, but action is even more powerful. As far as the records indicate, Al-Timimi himself did not partake in any direction action pertaining to treason. It was the Muslim men he had a conversation with who ultimately took the action in which Al-Timimi did not. Where is their responsibility in this incident?
The Brandenburg precedence clearly states that “to be punishable, the speech in question must be more than ‘talking big’ or ‘blowing off steam’” (Tedford, Herbeck 67). Given that the timing of this conversation can very well be interpreted as a period of “blowing off steam,” it would seem that the circumstances and content in which Al-Timimi spoke was protected under the first amendment.
Let us visit an example that can be applied to the Al-Timimi case when it comes to speech that is either protected or intends to incite lawless action. There is no denying that hate speech is a very realistic aspect of our country’s rhetoric. Take for example the usage of the word “fag” in an utterly derogatory way. There is no denying that the language itself is despicable—it really has no place in our national dialogue. However, it is a form of speech that is and should be protected under the first amendment. I will take it a step further and more controversially state that phrases (which have been used—witnessed myself by children) such as “That fag should die” is speech that again, while horrendous, is protected under the first amendment. Now. If someone said this phrase to a group of individuals and consequentially one of them enacted out this action we cannot blame the speaker. Yes, the language was destructive.
For those who argue that Al-Timimi incited these people to kill American soldiers in Afghanistan, I would direct them to the ruling by the U.S. District Court in Maryland who defended a publishing company’s right to publish Hit Man—an instructional guide on how to commit murder for hire. The lawsuit arrived after James Perry killed three people and it was discovered that he had a copy of Hit Man. Once again, the material itself is not beneficial to society as a whole but to judge an individual’s action based on the words of another is to be ignorant to the fact that human beings are inherently personally responsible. We may blame the people who speak but ultimately it is up to the listener to take action. The Maryland district court stated that “First Amendment protection is not eliminated simply because a publication of an idea creates a potential hazard” (Paladin, 73). Potential is a key word here. There is an assumption that something harmful is going to happen with hateful and language of dissent. This is not always true nor does it provide justifiable cause to inhibit someone from speaking freely to a group of people. While the U.S. District Court’s decision was eventually reversed by the Appeals Court insisting that the informational guide was “aiding and abetting” a crime, I would argue that theoretically the Paladin precedent still remains correct. We can not control individuals consumption of a product and consequentially how they will interact with that product.
As far as philosophical perspective is concerned, I believe that Edwin Baker’s Liberty Theory most directly applies to this case. The liberty theory, at its foundation, advocates for the protection of individuals to determine and make their own choices regarding certain controversial subjects. Baker insists that freedom of speech is inherently individual-based in that it is not only something that contributes to the collective good but to the value of the individual. When placed in context of the Al-Timimi case, while the content of the conversation may not have been beneficial for the collective good, it was Al-Timimi’s speech. Even if it was construed as inciting imminent danger, the language represented value to Al-Timimi who was upset at the time.
Emerson’s “Expression-Action:” theory also is applicable to this argument in that there is a distinct different between the expression of words and taking those words into action. Again—I go back to the argument that we cannot blame the speaker for others’ actions. Personal responsibility has such a high stake in this argument. Knowledge and speech does not always translate into action nor did Al-Timimi’s verbal actions result in him partaking in any physical action.
With all of this said I would advocate Al-Timimi receive no sentencing. There is strong evidence to suggest that he was very direct in his statements to these Muslim men. However, his individual participation does not justify sentencing. Religiously based or not, freedom of speech plays an important part in the consciousness of our country. While not always agreeable nor with positive results, it is a fundamental right in which we must preserve.
Using the landmark case of Brandenburg as historical precedent, I will argue that the immediate and imminent incitement standard applies to Al-Timimi’s case. While many would argue that based on the information presented in the case Al-Timimi’s sentence was justified, I will argue that given the circumstances—both content, environment and time—his conversation was protected under the first amendment. Therefore the conviction is unconstitutional and in direct opposition to a landmark case which clearly established that the voice of dissent—perhaps not always favorable—is protected. This is a tough position to argue given the evidence, but one that deserves special attention if we are truly scrutinizing the first amendment.
According to the Brandenburg case, “even threatening speech is protected, said the Court, unless the state can prove that the ‘advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (Brandenburg v. Ohio, 1969). Granted, there is significant evidence which suggests that the individuals Al-Timimi talked to on September 16, 2001 did indeed travel to Afghanistan within the following days. However, and this is where one must recognize protection of Al-Timimi—the actions of the Muslim men after the conversation have little to no allegiance to Al-Timimi and his words.
One must put into perspective the timing of this incident. The atmosphere of the country post-9/11 was less than supportive for the Muslim and Middle Eastern populations. President George W. Bush himself made it clear through his rhetoric that “these people” would face severe consequences for their actions. What was meant to be an indictment against the 9/11 hijackers specifically became a way in which Americans began to criminalize the Middle Eastern population as a whole.
For Muslim populations both emotions and fear were high following the 9/11 terrorist attacks. It would seem completely plausible that Al Timimi’s speech was a reaction to the reaction. When one is placed in a position of the “Other,” often times the most immediate response (and this was immediate—a total of 5 days after the attacks) is to respond with anger. Language is powerful, but action is even more powerful. As far as the records indicate, Al-Timimi himself did not partake in any direction action pertaining to treason. It was the Muslim men he had a conversation with who ultimately took the action in which Al-Timimi did not. Where is their responsibility in this incident?
The Brandenburg precedence clearly states that “to be punishable, the speech in question must be more than ‘talking big’ or ‘blowing off steam’” (Tedford, Herbeck 67). Given that the timing of this conversation can very well be interpreted as a period of “blowing off steam,” it would seem that the circumstances and content in which Al-Timimi spoke was protected under the first amendment.
Let us visit an example that can be applied to the Al-Timimi case when it comes to speech that is either protected or intends to incite lawless action. There is no denying that hate speech is a very realistic aspect of our country’s rhetoric. Take for example the usage of the word “fag” in an utterly derogatory way. There is no denying that the language itself is despicable—it really has no place in our national dialogue. However, it is a form of speech that is and should be protected under the first amendment. I will take it a step further and more controversially state that phrases (which have been used—witnessed myself by children) such as “That fag should die” is speech that again, while horrendous, is protected under the first amendment. Now. If someone said this phrase to a group of individuals and consequentially one of them enacted out this action we cannot blame the speaker. Yes, the language was destructive.
For those who argue that Al-Timimi incited these people to kill American soldiers in Afghanistan, I would direct them to the ruling by the U.S. District Court in Maryland who defended a publishing company’s right to publish Hit Man—an instructional guide on how to commit murder for hire. The lawsuit arrived after James Perry killed three people and it was discovered that he had a copy of Hit Man. Once again, the material itself is not beneficial to society as a whole but to judge an individual’s action based on the words of another is to be ignorant to the fact that human beings are inherently personally responsible. We may blame the people who speak but ultimately it is up to the listener to take action. The Maryland district court stated that “First Amendment protection is not eliminated simply because a publication of an idea creates a potential hazard” (Paladin, 73). Potential is a key word here. There is an assumption that something harmful is going to happen with hateful and language of dissent. This is not always true nor does it provide justifiable cause to inhibit someone from speaking freely to a group of people. While the U.S. District Court’s decision was eventually reversed by the Appeals Court insisting that the informational guide was “aiding and abetting” a crime, I would argue that theoretically the Paladin precedent still remains correct. We can not control individuals consumption of a product and consequentially how they will interact with that product.
As far as philosophical perspective is concerned, I believe that Edwin Baker’s Liberty Theory most directly applies to this case. The liberty theory, at its foundation, advocates for the protection of individuals to determine and make their own choices regarding certain controversial subjects. Baker insists that freedom of speech is inherently individual-based in that it is not only something that contributes to the collective good but to the value of the individual. When placed in context of the Al-Timimi case, while the content of the conversation may not have been beneficial for the collective good, it was Al-Timimi’s speech. Even if it was construed as inciting imminent danger, the language represented value to Al-Timimi who was upset at the time.
Emerson’s “Expression-Action:” theory also is applicable to this argument in that there is a distinct different between the expression of words and taking those words into action. Again—I go back to the argument that we cannot blame the speaker for others’ actions. Personal responsibility has such a high stake in this argument. Knowledge and speech does not always translate into action nor did Al-Timimi’s verbal actions result in him partaking in any physical action.
With all of this said I would advocate Al-Timimi receive no sentencing. There is strong evidence to suggest that he was very direct in his statements to these Muslim men. However, his individual participation does not justify sentencing. Religiously based or not, freedom of speech plays an important part in the consciousness of our country. While not always agreeable nor with positive results, it is a fundamental right in which we must preserve.
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