Synthesis

Looking back on CMJR 494, I’ve found that my thoughts on freedom of speech have drastically changed from my initial thoughts when walking into the class on the first Wednesday night a couple of months ago. This change is clear in my blog posts, where my stance has changed bi-weekly depending on any given issue.

For example, I wrote my first blog post on the Ecco Homo exhibition and the Jyllands-Posten cartoons. In this case study, I was adamant that the rights of Kurt Westergaard (cartoonist) and the Ecco Homo exhibition be given utmost protection under John Stuart Mill’s harm principle. The last quote of my post stated that “Although it is important to respect majority group values, sometimes it is necessary to push the boundaries in order to contribute to debate that can lead to social change.” Two weeks later, I completely contradicted this assertion.

The next blog post I wrote was about the Westboro Baptist Church, and the hateful speech that they spread via offensive signs and protects at the funerals of fallen soldiers. In this case, I dropped Mill’s harm principle and instead used Zechariah Chafee to support my argument that the WBC should be punished, and that their speech rights should not be protected. The WBC’s speech is pushing boundaries and fueling the debate that may possibly lead to social change, but this speech was so offensive to me that I unknowingly attempted to protect similar speech without supporting the WBC.

Next, I took a look at obscenity and the regulation of consenting adults voluntarily sharing sexual materials. In this case, I looked to protect this type of sexual speech in a very circumstantial way. I wanted to protect the speech, but only if it didn’t get into the wrong hands. If I had applied a speaker in this case, I likely would have applied Mill’s harm principle.

Finally, I wrote on animal cruelty and animal rights, a topic that I had a considerable amount of difficulty with. As a pronounced animal lover who could barely watch the CNN video clip about crush videos, I had a tough time considering protecting the rights of someone who was hurting an animal. However, upon further investigation I found that prohibiting certain speech regarding animals would lead serious censorship of speech later on, precedents that I didn’t want to have put in place. I ended up using Chafee’s philosophy (again), and used Chaplinsky v. New Hampshire to divide depiction of animal cruelty into categories of worthless and valuable. By applying a SLAPS clause, I attempted to make this distinction.

Until I began to write this final post, I thought that I was definitely a follower of Mill’s broad philosophy of complete protection of speech, unless it will cause harm to others. However, it seems that I am actually a Chafee supporter, as I have begun to support all of my arguments with Chafee’s beliefs of protecting any speech that promotes social interest, while often individual speech is worthless if it is lewd, obscene, profane, libelous, or insulting. It seems that I don’t mind insulting or lewd speech, but once speech becomes too obscene or profane for my liking, I immediately turn to Chafee.

As for my go-to theory, I think I’d have to go with the offense theory, as I feel that sometimes the harm principle doesn’t go as far as I would like. Joel Feinberg's offense principle fit the bill for a lot of the situations and cases that I examined. The Stanford Encyclopedia of Philosophy sums up Feinberg’s argument nicely:

"In some instances, Feinberg suggests, we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Offending someone is less serious than harming someone, so the penalties imposed should be less severe than those for causing harm."

I’m surprised by how far I’ve strayed from Mill here at the end of the quarter. I have definitely redefined my understanding of free speech, and begun to draw a line between protected and unprotected speech. I think that my current opinion is that all speech should receive protection until it becomes individual speech that harms or overly offends another individual or a group. I think that offensive speech is fine until causes permanent harm that could be prevented by prohibiting the speech (Westboro protests), or if it sets a bad example for acceptable behavior (such as animal cruelty).

Cases that I’ve found myself using to support my arguments are mainly Chaplinsky v. New Hampshire, a landmark case that defined worthless speech, and Miller v. California, which defined obscenity and added the idea of a SLAPS clause, something that I’ve become fond of adding to many of my arguments. I appreciate Miller v. California due to the idea of looking at a work as a whole before prohibiting it, and the concept of SLAPS (serious literary, artistic, political, or scientific) value. In Chaplinsky, a unanimous court decision deemed “the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” as speech that shouldn’t protected. This fits with Chafee’s philosophy about social interest versus individual interest.

Clearly, I am trying to find a definition that supports my previous blog posts to an extent, and to be honest, I don’t know if that opinion will remain the same. Even in writing this post, I am beginning to question where I stand on the freedom of speech, this fluid concept that everyone believes to be their unconditional right, yet under scrutiny there are so many rules, loopholes, and red tape. That’s the beauty of the freedom of speech, it seems so obvious, so simple, but in fact it’s a complex concept that’s constantly evolving.

Simultaneously protecting free speech and animal rights?

In United States v. Stevens, Robert J. Stevens was convicted of making three videotapes that depicted dog-fighting, and dogs being trained for fighting. The tapes were labeled as depictions of animal cruelty, and Steven’s was sentenced to 37 months in prison for violating the exception to the First Amendment’s speech clause that criminalizes videotapes and other depictions of animal cruelty.

Before U.S v. Stevens, the only unprotected speech under the First Amendment was fighting words, obscenity, incitement, libel, and child pornography. The result of U.S v. Stevens could add another item to this list. The law in question that might possibly be passed under U.S v. Stevens stemmed from crush videos which were outlawed in 1999 with a statute making it a crime to create, sell, or possess depictions of animal cruelty, if the cruelty is illegal by United States law. Crush videos are portrayals of women in high heels or sometimes even bare feet, crushing vulnerable animals ranging from insects to kittens. These videos apparently appeal to about 1,000 fetishists worldwide, and aren’t widely distributed, likely because a)they are now illegal, and b)most people find them absolutely revolting. At any rate, U.S. v. Stevens attempted to overturn the 1999 response to crush videos in order to protect Steven’s free speech rights due to the three dog-fighting videos.

The real question here (in my opinion) lies in the difference between depiction of animal cruelty, and the cruelty itself. If a dog fight tales places in a country where it is legal, this isn’t a problem. If it is taped in the country where it is legal, everything’s still okay. However, once that depiction is brought to the United States, where depictions of animal cruelty are banned, the depiction is deemed illegal even though it didn’t take place on American soil. This leads to the next question of the definition of animal cruelty, and what it consists of. Animals, it is assumed, don’t feel shame, and therefore won’t experience negative repercussions upon the release of videos of them. This differs from child porn, where shame plays a huge part in legislation meant to protect children and ban child pornography. 18 U.S.C. § 48 describes the current laws regarding depictions of animal cruelty.

18 U.S.C. § 48 defines animal cruelty as:

“any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State.”

When analyzing U.S. Stevens, I lean towards protecting his speech, only because of the consequences that may arise if his speech was prohibited. The videos that he narrated and distributed contain some material that is decades old, and this leads to the historical and cultural implications that could result from banning such videos. Should SLAPS apply, or should historical, artistic, or cultural depictions of “animal cruelty” be banned? Possible examples are: Videos of Eskimos whaling, an activity that’s been tradition in their culture for centuries, or a scene from the award-winning film Apocalypse Now where a live water buffalo is hacked to death with a machete. If Stevens’ speech wasn’t protected, it would mean that depictions such as those defined could also be prosecuted.

To protect Stevens’ speech, I would use Zechariah Chafee’s philosophy concerning free speech. Chafee believes in protecting speech that serves social interest, however he doesn’t protect “worthless” speech, which he specifically describes as profane, indecent, or defamatory. I choose Chafee’s philosophy because under a SLAPS clause, some material of what could possibly be labeled as animal cruelty (movie scenes, historical documentaries, images depicting a cultural traditions i.e. bullfighting) would be protected because it serves social interest by educating society. Chafee might argue that videos of dog-fighting serve social interest because they are depictions of a long-standing cultural activity that takes place in many countries worldwide.

Although I think that some depictions of animal cruelty (those which serve a greater purpose) should be protected, I think that these depictions should not harm animals. Meaning that although dog-fighting, or cock-fighting, or whaling, could be depicted, it couldn’t be a real-life depiction of the action taking place but instead a simulation. However, I would protect previous depictions of real-life depictions under a SLAPS clause (on a case-by-case basis) due to their historical value, unless they were particularly offensive i.e.crush videos.

In the case of animal cruelty and in order to support my stance on depictions, I found that it was hard to use provisions under New York v. Ferber due to the sexual aspect of the speech. When it comes to animals and sex, I don’t think that any speech should be protected, and therefore the government has a “compelling interest” to protect the sexual exploitation of animals, which I believe are as vulnerable as children regardless of their ability to feel shame. The actions, which are already illegal, should remain that way, and I feel that depictions of these actions can serve as encouragement to turn fantasy into reality in a very disturbing way.

However, Stevens speech clearly doesn’t have a sexual element to it, and therefore doesn’t fall under the same requirements as child porn. Since I want to protect Stevens’ speech, I would use Chaplinksy v. New Hampshire, a landmark case that deals with worthless speech. In order to separate animal depictions that I deem acceptable from those that should be depicted, I would divide them into categories of worthless and not worthless speech. Depictions that fall under the SLAPS clause would not be worthless speech, but those that actually cause harm to animals would be worthless.

Overall, I would protect Steven’s speech due to the repercussions of prohibiting his videos. However, I would try to implement my stance on the depictions of actual animal cruelty versus depictions that don’t actually harm animals in order to bring the public images of cultural traditions without actually harming animals, while allowing the historical depictions to still exist and be watched without repercussions.

Applying obscenity standards and Reno v. ACLU to online sexual speech

Address the three questions at the top of this discussion with reference to the topic of sexually-oriented ADULT-to-ADULT web camming and the voluntary self-postings of homemade sex videos on various sites. To what extent would you support a federal law that regulated such sexual materials by banning them and/or punishing Internet Service Providers who allow such transmissions or postings? Would you punish the material as “indecent” under FCC v. Pacifica, overruling the Supreme Court decision in Reno v. ACLU or would you apply obscenity standards?

1) Should words, images and sounds that stimulate erotic or sexual thoughts be granted the same protection as political speech?
Words, images, and sounds that stimulate erotic thoughts should be granted a high level of protection, and they should be given the same absolute protection as political speech, except only in certain online and offline forums. In these places the sexual speech should be protected to the utmost degree, but otherwise it should be susceptible to punishment.

Although often controversial, and not always accepted by all, I believe that it is important for this kind of speech to be protected to a high extent. It should be protected until it becomes obscene, as obscenity is still criminal in all media. The overall definition of obscenity that I want to use to support my argument was applied to Miller v. California, where it was decided that obscenity was not protected under the First Amendment, and that the Miller Test should be used when decided if speech was obscene or not. A work was defined as obscene if an average person applying community standards finds:

• The work as a whole whole appeals to prurient interest, and;
• It depicts in a patently offensive way sexual conduct outlawed by specific state law, and;
• It lacks Serious Literary, Artistic, Political, or Scientific value as judged by national standard.

However I feel that only parts of this definition should be used to punish sexual speech. I don’t think that a work needs to have SLAPS in order to be protected. I highly doubt that many of the sexual materials available on the internet have artistic value beyond bringing pleasure to the viewer. I also don’t think that it matters if a work appeals to a prurient interest or not. Other kinds of highly offensive speech are protected by law, and I don’t think that sexual speech should be treated any differently. I do think that if the work is portraying something prohibited by specific state law, it shouldn’t be protected speech, especially if it is being posted on the world wide web for everyone to see. I am still struggling with the concept of that material being acceptable if kept within the confines of a person’s home as was protected under Stanley v. Georgia. This 1969 decision protects the possession of obscene speech, but allows punishment for creation and distribution of the same kind of speech. I agree with the court decision in this case, and see no problem with watching obscene material in the privacy of one's home. As long as the sexual speech is not prohibited by law (ex. child pornography, beastiality), it should be protected. Furthermore, this material should be allowed to be produced and shared (under certain conditions) as long as it doesn't violate state laws, in my opinion.

2) Should adults have the same rights to create such speech for private use, distribute such speech for public consumption and receive such speech – or should varying levels of protection be applied?
In accordance with Reno v. American Civil Liberties Union, I think that adults have the right to post and participate in sexual speech via the internet, and that this speech should be protected. The 1997 case marked nine Justices of the Court striking down anti-indecency provisions of the Communication Decency Act because these provisions suppressed free speech rights of internet users. The provisions were meant to protect children from encountering sexual material online by criminalizing any obscene messages sent to minor recipients, and also criminalizing the knowing sending of any material that basically depicted and/or described sexual activities or organs. The majority opinion was that less restrictive measures could be used to protect children while maintaining free speech among adults on the internet.

Under Reno v. ACLU, adults should be able to create, distribute, and receive such speech (posting of homemade sexual material/webcamming) on the internet. Varying levels shouldn’t be applied for the different actions – I think they should all be protected unless deemed obscene and being transmitted to a captive audience or children (Justice Brennan’s approach to sexual speech).

3) Should the same levels of protection apply to ALL media – print, broadcast, movies, cable, online sites, webcams/chat – or should the levels of protection vary according to medium?
Adult-to-adult materials such as webcams/chat and online sites are easier to contain on the internet that all types on media. I think that the sexual speech should not be protected to a high degree if being broadcast via television, radio, or cable. These are portals that are widely watched, and an audience that doesn't want to see sexual material could more easily stumble across it if it was broadcast all over the place. I think that for the safety of children, sexual speech should be contained in closed portals that are not as accessible, and that take more effort to experience.

Movies are more of a choice because they are often kept in a certain section of a DVD or video rental store. It requires more effort to buy a video and take it home than to turn on the television to a regular station and all of a sudden be watching some aspect of sexual speech. They should therefore be protected under Burstyn v. Wilson, a case that decided that movies do have value and are protected speech under the First Amendment and marked the decline of movie censorship in the United States. I feel that the internet is the same way -- a viewer or participant needs to make an effort to reach sexual speech in most cases. They need to go on the computer, find a certain kind of website, pass a warning page, and often log in before they can access sexual material. Material found in these areas of the web should receive protection. However, this argument could be partially undermined by the widespread use of webcams. Now, anyone anywhere can connect a camera to their computer and go online to any kind of chatroom to get involved in sexual speech. I don't think this should be protected unless it is on certain websites and online spaces where people have to knowingly make the decision to engage in such speech.