As I browse through my blog postings, reflecting on a quarter defined by philosophical arguments, scrutinizing speech and textual analysis (among many things) I am witness to an evolution of thinking. My ideas of the first amendment were sweeping and lofty—the first amendment being a coveted statement guaranteeing every individual the right to speak his/her mind no matter what. Little did I understand the nuances of the historical amendment. Having explored various aspects of the right to speech, I understand that judgment plays a large and important role in defining what is considered acceptable speech for the individual. Individual and personal responsibility plays an important role in deciding what is acceptable or not. This is to say that individuals have the choice to view or be exposed to material that they may or may not find offensive. The 'captive audience' argument falls flat for me every time as individuals can, in nearly every circumstance, select what they choose to view or be exposed to. We are consumers with choices. In many respects this absolves the speaker of a lot of his/her responsibility when it comes to burden of proof and instead insists that the consumer prove the speech had a negative effect or was erroneous.
While the supreme court rarely sides with advocates of individual self-fulfillment, it is the philosophical reasoning that I side with the most. Most specifically Haiman. He provides a clear analysis of personal responsibility Haiman examines four context-centered areas that are in direct opposition to philosopher's who propose and either/or system of communicative philosophy. The basis of his four theories is simple—the “social order exists to maximize individual liberty” (Tedford, 440). This is to say that individuals within a society are given the responsibility and obligation to practice free choice and are consequentially responsible for their own actions. Notice that there is far less emphasis placed on the system. The focus is the individual—absolving much of the government and political speakers from consequence. He states that the government has an obligation to promote communicational diversity. While certain aspects of communication/speech may not always be favorable, it does provide a healthy marketplace of ideas. While Chafee would argue that not all speech contributes to the social interest, the judgment of what is considered in the best interest of society is inherently individual. Based on community and individual standards, we should be able to judge what is in interest to us. The social interest is not at its foundation a group-identity. To coagulate the definition of social interest is to deny the fact that individuals are inherently different—their background experiences dictating their present day interactions.
Looking at my blog postings and reflecting on the class there are two instances where this does not work. When it comes to videos depicting animal cruelty and blatant child pornography, one must begin to scrutinize speech in terms of its social value. For me, this has absolutely no social value regardless of community standards and varying individual backgrounds. While a disturbed individual may be comfortable watching a crush video, community standards would dictate that a far larger majority of people would be completely disgusted by the material. Furthermore, life is involved. When certain speech has the threat of providing actual physical harm against another living being, then a high level of scrutiny needs to occur. This is not offensive but harmful. There is direct action taken to harm and damage the lives of certain creatures all of which adds nothing to the marketplace of ideas. Violence, especially physical violence, is not included as 'free speech' under the first amendment. While one may argue we do enact speech with our bodies, the action of killing something in the name of speech is deplorable.
Given that, I did defend Al-Timimi in my first blog posting. The main argument not protecting his speech was that there was an incitement of violence. However, this fails to take into account personal responsibility. Using the landmark case of Brandenburg as historical precedence, I argued that the immediate and imminent incitement standard did apply 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 insisted that given the circumstances—both content, environment and time—his conversation was protected under the first amendment. Therefore the ruling was unconstitutional and in direct opposition to a landmark case which clearly established that the voice of dissent—perhaps not always favorable—is protected.
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’” (Tedford, Herbeck 66). 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. I quickly realized, and went back to Haiman for philosophical context, that individual responsibility plays an incredibly large role in the freedom of speech. The 'soldiers' who allegedly listed to his words were not a captive audience. Al-Timimi was not holding them hostage insisting that they listen to his words. They were their by choice and thus on their own free will. Again, the burden of proof falls on the audience and not the speaker. What those men decided to do after they left Al-Timimi has everything to do with their individual free will and very little to do with Al-Timimi's words.
For the most part I see myself supporting a strict scrutiny of punishment when it comes to punishing speech. The government must provide compelling reasons to regulate or punish speech. As stated direct incitement like death of a creature or exposure of a minor in a sexual manner is, to me, a compelling reason to restrict speech. Beyond that there is very little that deserves to be unprotected. The marketplace of ideas, while different for everyone, is a vital aspect of our society. Social standards are innately individualistic—it is unreasonable that there would be a universal definition and therefore a standard by which we judge all acceptable speech. The individual is at the foundation of my argument for it is the individual who ultimately dictates his/her consumption.
There is a shady gray area, however, when it comes to libelous statements and defamation. Though given my arguments I would insist that unless the speech incites harm against the individual of topic, then the speech must be protected under the first amendment. While most often speech is not in 'good taste' in terms of this presumed 'social standard,' it is a necessary model for the continuation of a free marketplace of ideas. Losing this would be detrimental to the foundational right of expression.
Issues of the first amendment are complex but intriguing for the mere fact that speech is so engrained in our culture as a means to get ahead. It becomes not only a tool of expression but action—hopefully within the boundaries of what is considered positive social action. In this sense we all have an obligation to perpetuate speech and promote a culture of communicational diversity.
Friday, December 4, 2009
Thursday, December 3, 2009
Animal Rights--not just for humans.
There is no denying the deplorable and patently offensive nature of videos depicting animal cruelty. Most specifically “crush” films—video depicting the act of stepping on small animals in order to satisfy sexual fetish is one of the more disgusting things and unnecessary things included in our society.
Framing these videos and other depictions of animal cruelty within the first amendment is an interesting concept. While I have generally been someone who has upheld first amendment rights fairly liberally (see Al Timimi), the 1999 law making it illegal to sell crush videos for profit seems on target. The argument of free-speech rights and expression falls flat in this case, citing the lack of important and meaningful content entered into society's intellectual conversation. These videos, aside from being a source of sexual pleasure for a small minority of people, have no place in society when it comes to the expression of ideas.
Philosophically speaking, videos of blatant animal cruelty hold little to no foundation. Many of the freedom of expression philosophers, evaluating the nature of “crush” videos, would more than likely question such first amendment rights. Both Milton and Mill may argue that animal cruelty videos add nothing to the marketplace of ideas and in no way intends to find and test truth. Furthermore, these videos hold no importance as it pertains to political speech. If anything, Chafee would argue that animal cruelty video holds no social interest and therefore garners little first amendment protection. Based on Chafee’s philosophical approach material is judged based on whether or not it is in the social interest or not. In terms of animal cruelty, this is a no-brainer. There is absolutely no social substance to these “crushing” videos.
The 1998 Sec. 48 public law clearly states that “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.” The language is clear. It goes on to say in the subsection that this “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The language is clear with its target and intent. As far as I'm concerned, the law is not overly broad nor is it ambiguous in any way. It is clear that videos which are sold and document graphic behavior against animals is penalty under the law. Stevens’ video, while not sexual, does depict animal cruelty to a degree where animals are in inevitable danger of death. There is no political or historical value to the video and instead serves as a tool of entertainment.
As far as levels of scrutiny are concerned, with videos of animal cruelty it is reasonable to state that there needs to be a high level of scrutiny. This is to say that the government must demand of the speaker why they should be allowed to depict these acts of violence. This is a radical switch in opinion for me and indicates the case by case basis of determining the scrutiny level on a specific case. Rather than the defense having to prove the social worth of these animal cruelty films, I place the burden on the speaker who has deemed it socially acceptable. Their reasoning must be significant enough to warrant protection. It comes down to harm—would we accept a low level of scrutiny for a speaker who depicts the death of a human being? In many ways the government must be required to present little to no reasoning for blocking of such messages. Chafee would argue that because the speech serves no social interest and no search for truth, it deserves less protection. More than likely Chafee would agree that videos depicting animal cruelty are clearly indecent. The crush videos do nothing to promote truth or morality in society. Chaplinsky v New Hampshire cements Chafee’s views in terms of social interest and morality. The case states “that such utterances are no essential part of any exposition of ideas, and are such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Chaplinsky).In terms of doctrinal analysis, it may even be necessary to equate issues of animal cruelty to that of child pornography. To a large degree, just like child pornography, the subject of an animal-based video has little control over his/her intellectual and emotional agency. Harm is induced by the creator for a specific purpose without the consent of the subject.
In the Child Pornography Prevention Act of 1996 it is made clear that material where “the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct” is illegal. How does this differ at all from the depiction of brutal animal cruelty? While society values the lives of humans to a more severe degree, animals are living beings who need to be afforded similar rights.
One of the supreme court justices, sarcastically, brings up the question of having a television, pay-per-view program depicting the killing of humans. While a radical example, I think it does yield an interesting conversation concerning the rights of human’s vs. animals and what would be considered unprotected video. It would be safe to assume that such a program would not be protected and would immediately be forced off the air without any level of scrutiny. Some may argue that similarly, given my argument, images of war and car crashes would not be protected nor images of aborted babies. This is not true. All of these things, including war, are not necessarily by choice. There are other circumstances which have led up to these things happening and—while they may not be tasteful to some people—are protected speech in that they represent a reality. What is a choice is making the decision to either harm an animal or not. These crush videos are not by accident, they are meant to inflict harm on another living thing.
The harm principle does not apply to this topic. According to the harm theory, certain speech is protected if it does not cause harm to any specific person or object (bad tendency). We know this not to be the case when it comes to cases of dog fighting and this horrendous “crush” fetish. Lives are being destroyed and the speaker deserves to take full responsibility. The 1999 law by Congress is both strong and narrow enough to make it clear that any depiction of animal cruelty is strictly prohibited and is not protected under the first amendment because it holds no social value. Even if the material is used to inform of abuses there are ways around showing abusive and demeaning footage of animal cruelty. It is important to recognize that animal cruelty is illegal in all 50 states. It would make sense then that video footage of animal cruelty is equally illegal.
Framing these videos and other depictions of animal cruelty within the first amendment is an interesting concept. While I have generally been someone who has upheld first amendment rights fairly liberally (see Al Timimi), the 1999 law making it illegal to sell crush videos for profit seems on target. The argument of free-speech rights and expression falls flat in this case, citing the lack of important and meaningful content entered into society's intellectual conversation. These videos, aside from being a source of sexual pleasure for a small minority of people, have no place in society when it comes to the expression of ideas.
Philosophically speaking, videos of blatant animal cruelty hold little to no foundation. Many of the freedom of expression philosophers, evaluating the nature of “crush” videos, would more than likely question such first amendment rights. Both Milton and Mill may argue that animal cruelty videos add nothing to the marketplace of ideas and in no way intends to find and test truth. Furthermore, these videos hold no importance as it pertains to political speech. If anything, Chafee would argue that animal cruelty video holds no social interest and therefore garners little first amendment protection. Based on Chafee’s philosophical approach material is judged based on whether or not it is in the social interest or not. In terms of animal cruelty, this is a no-brainer. There is absolutely no social substance to these “crushing” videos.
The 1998 Sec. 48 public law clearly states that “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.” The language is clear. It goes on to say in the subsection that this “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The language is clear with its target and intent. As far as I'm concerned, the law is not overly broad nor is it ambiguous in any way. It is clear that videos which are sold and document graphic behavior against animals is penalty under the law. Stevens’ video, while not sexual, does depict animal cruelty to a degree where animals are in inevitable danger of death. There is no political or historical value to the video and instead serves as a tool of entertainment.
As far as levels of scrutiny are concerned, with videos of animal cruelty it is reasonable to state that there needs to be a high level of scrutiny. This is to say that the government must demand of the speaker why they should be allowed to depict these acts of violence. This is a radical switch in opinion for me and indicates the case by case basis of determining the scrutiny level on a specific case. Rather than the defense having to prove the social worth of these animal cruelty films, I place the burden on the speaker who has deemed it socially acceptable. Their reasoning must be significant enough to warrant protection. It comes down to harm—would we accept a low level of scrutiny for a speaker who depicts the death of a human being? In many ways the government must be required to present little to no reasoning for blocking of such messages. Chafee would argue that because the speech serves no social interest and no search for truth, it deserves less protection. More than likely Chafee would agree that videos depicting animal cruelty are clearly indecent. The crush videos do nothing to promote truth or morality in society. Chaplinsky v New Hampshire cements Chafee’s views in terms of social interest and morality. The case states “that such utterances are no essential part of any exposition of ideas, and are such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Chaplinsky).In terms of doctrinal analysis, it may even be necessary to equate issues of animal cruelty to that of child pornography. To a large degree, just like child pornography, the subject of an animal-based video has little control over his/her intellectual and emotional agency. Harm is induced by the creator for a specific purpose without the consent of the subject.
In the Child Pornography Prevention Act of 1996 it is made clear that material where “the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct” is illegal. How does this differ at all from the depiction of brutal animal cruelty? While society values the lives of humans to a more severe degree, animals are living beings who need to be afforded similar rights.
One of the supreme court justices, sarcastically, brings up the question of having a television, pay-per-view program depicting the killing of humans. While a radical example, I think it does yield an interesting conversation concerning the rights of human’s vs. animals and what would be considered unprotected video. It would be safe to assume that such a program would not be protected and would immediately be forced off the air without any level of scrutiny. Some may argue that similarly, given my argument, images of war and car crashes would not be protected nor images of aborted babies. This is not true. All of these things, including war, are not necessarily by choice. There are other circumstances which have led up to these things happening and—while they may not be tasteful to some people—are protected speech in that they represent a reality. What is a choice is making the decision to either harm an animal or not. These crush videos are not by accident, they are meant to inflict harm on another living thing.
The harm principle does not apply to this topic. According to the harm theory, certain speech is protected if it does not cause harm to any specific person or object (bad tendency). We know this not to be the case when it comes to cases of dog fighting and this horrendous “crush” fetish. Lives are being destroyed and the speaker deserves to take full responsibility. The 1999 law by Congress is both strong and narrow enough to make it clear that any depiction of animal cruelty is strictly prohibited and is not protected under the first amendment because it holds no social value. Even if the material is used to inform of abuses there are ways around showing abusive and demeaning footage of animal cruelty. It is important to recognize that animal cruelty is illegal in all 50 states. It would make sense then that video footage of animal cruelty is equally illegal.
Harming a Reputation: Unprotected Speech?
Prompt: Consider the case of J.S. in Pennsylvania. The federal district court in that case applied the standards of Bethel v. Fraser to rule against protecting her lewd remarks off-campus. Do you think this case was correctly decided by the lower court, or, as a Supreme Court justice, would you instead insist that all cases involving postings on Facebook, My Space, etc., be judged under the standards of Tinker v. Des Moines? Be sure to draw upon both philosophical and doctrinal lines of reasoning.
The case of J.S. is complicated. While the creation of the myspace page occurred off campus and was initially distributed to a non-captive audience, it did eventually reach the academic atmosphere to a point where it interrupted the educational environment. The content of the myspace page, referring to the principal as both a sexual offender and pedophile, brings up severe issues of libel and defamation. That in and of itself is prosecutable. However, in terms of free speech I would argue that the federal district court in Pennsylvania was justified in using Bethel vs. Fraser as a clear precedent and consequently siding with the school district in its decision to suspend the student for 10 days.
While in most situations I would argue under the Tinker vs. Des Moines landmark decision, J.S. used lewd and vulgar speech which ultimately undermined the school's principal and put in danger his educational mission as well as that of the schools.
In the Bethel vs. Fraser ruling Justice Brennan concurred the judgment stating that “To my mind, the most that can be said about respondent's speech - and all that need be said - is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was [478 U.S. 675, 688] not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits.” In terms of the J.S. case, the respondent's remarks “exceeded permissible limits” due to the nature of the myspace page. It was clear there was an intent to defile the principal through the use of damaging information. Pedophilia is a damaging claim that would, if true, incite immediate reprimand. The fact that this was not true but rumored on a public social medium is a clear incitement to harm—perhaps not physically but in terms of social and academic agency.
Philosophically speaking, philosopher Zechariah Chafee would argue that J.S's speech was not in the social interest and therefore should have limited protection. There was no search for truth but rather a quest to destroy a reputation. In many ways, it could be classified as worthless speech as it does not serve to promote public interest or add to the public marketplace of ideas. Instead it serves to primarily damage. There is no attainment of truth in J.S.'s speech. In fact, if anything, the speech serves to promote the dissolution of truth.
If this incident were to have happened strictly off-campus—no viewing whatsoever by the educational community—it may be a different story. Because of its larger platform, the consequences are increased. For example, an interaction between two students in passing—mentioning the stuff J.S. included on the myspace page—while still defamatory does not have the same implications as a myspace page. Because of the nature of the incident and the distribution among the school it did create a negative environment for both students and staff. The fact that the information on the page centered around false facts (pedophilia, sexual abuse) indicates to a certain degree a level of hate speech. The intent was to harm this principal's career and defame his credibility with the confines of the school. The argument that this was produced off school grounds falls flat considering the audience was specifically targeted as students and faculty of the school. This is an issue of personal versus public expression. If J.S's intent was to garner revenge in a private manner this page would not have been made public. There was a clear intent to damage.
In terms of scrutinizing speech, Bethel vs. Fraser does not assume to enact any prior restraint. Rather, there is a doctrinal test of bad tendency. This is to say that once the words are spoken and they are words that offend others or might harm an individual then there is increased rationality to regulate or punish speech. In the case of J.S., there is clear bad tendency. It does not go as far as clear and present danger or incitement but does present offensive language with the intent to harm.
The previous case of Tinker vs. Des Moines grants greater free speech to students and rightfully so. In terms of free speech and education the supreme courts famous statement, the first amendment should “not be left at the school house door” speaks volumes. However, the opinion of the court in the case makes it clear that public schools must have a substantial reason for limiting or punishing student expression. In terms of J.S.'s case, one can easily argue that the reason is substantial. With the freedom of speech arrives a responsibility. While I agree with the Tinker vs. Des Moines case in that it grants greater free speech rights to students, the nature of the speech needs to be examined just as it would outside of an educational atmosphere. J.S. clearly did not understand the weight that comes with free speech. Instead of using it as a platform to enter into conversation and contribute to the marketplace of ideas she ultimately used her voice for severe defamation.
The case of J.S. is complicated. While the creation of the myspace page occurred off campus and was initially distributed to a non-captive audience, it did eventually reach the academic atmosphere to a point where it interrupted the educational environment. The content of the myspace page, referring to the principal as both a sexual offender and pedophile, brings up severe issues of libel and defamation. That in and of itself is prosecutable. However, in terms of free speech I would argue that the federal district court in Pennsylvania was justified in using Bethel vs. Fraser as a clear precedent and consequently siding with the school district in its decision to suspend the student for 10 days.
While in most situations I would argue under the Tinker vs. Des Moines landmark decision, J.S. used lewd and vulgar speech which ultimately undermined the school's principal and put in danger his educational mission as well as that of the schools.
In the Bethel vs. Fraser ruling Justice Brennan concurred the judgment stating that “To my mind, the most that can be said about respondent's speech - and all that need be said - is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was [478 U.S. 675, 688] not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits.” In terms of the J.S. case, the respondent's remarks “exceeded permissible limits” due to the nature of the myspace page. It was clear there was an intent to defile the principal through the use of damaging information. Pedophilia is a damaging claim that would, if true, incite immediate reprimand. The fact that this was not true but rumored on a public social medium is a clear incitement to harm—perhaps not physically but in terms of social and academic agency.
Philosophically speaking, philosopher Zechariah Chafee would argue that J.S's speech was not in the social interest and therefore should have limited protection. There was no search for truth but rather a quest to destroy a reputation. In many ways, it could be classified as worthless speech as it does not serve to promote public interest or add to the public marketplace of ideas. Instead it serves to primarily damage. There is no attainment of truth in J.S.'s speech. In fact, if anything, the speech serves to promote the dissolution of truth.
If this incident were to have happened strictly off-campus—no viewing whatsoever by the educational community—it may be a different story. Because of its larger platform, the consequences are increased. For example, an interaction between two students in passing—mentioning the stuff J.S. included on the myspace page—while still defamatory does not have the same implications as a myspace page. Because of the nature of the incident and the distribution among the school it did create a negative environment for both students and staff. The fact that the information on the page centered around false facts (pedophilia, sexual abuse) indicates to a certain degree a level of hate speech. The intent was to harm this principal's career and defame his credibility with the confines of the school. The argument that this was produced off school grounds falls flat considering the audience was specifically targeted as students and faculty of the school. This is an issue of personal versus public expression. If J.S's intent was to garner revenge in a private manner this page would not have been made public. There was a clear intent to damage.
In terms of scrutinizing speech, Bethel vs. Fraser does not assume to enact any prior restraint. Rather, there is a doctrinal test of bad tendency. This is to say that once the words are spoken and they are words that offend others or might harm an individual then there is increased rationality to regulate or punish speech. In the case of J.S., there is clear bad tendency. It does not go as far as clear and present danger or incitement but does present offensive language with the intent to harm.
The previous case of Tinker vs. Des Moines grants greater free speech to students and rightfully so. In terms of free speech and education the supreme courts famous statement, the first amendment should “not be left at the school house door” speaks volumes. However, the opinion of the court in the case makes it clear that public schools must have a substantial reason for limiting or punishing student expression. In terms of J.S.'s case, one can easily argue that the reason is substantial. With the freedom of speech arrives a responsibility. While I agree with the Tinker vs. Des Moines case in that it grants greater free speech rights to students, the nature of the speech needs to be examined just as it would outside of an educational atmosphere. J.S. clearly did not understand the weight that comes with free speech. Instead of using it as a platform to enter into conversation and contribute to the marketplace of ideas she ultimately used her voice for severe defamation.
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