Final Post: A Reflection

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.