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.

Offensive Speech: Westboro Baptist Church

The Westboro Baptist Church is a controversial church known for its infamous protests at the funerals of fallen soldiers and for their outspoken opinions about homosexuals, among other minority groups. Although they do not place physical harm upon others, they verbalize their strong opinions through signs, their online presence, and defamation of the American people, who they claim are doomed to hell (unless, of course, they are a member of the Westboro church). The WBC is lead by Fred Phelps, who founded the organization in 1955.

The WBC has been taken to court several times for their offensive protests. For instance, a 2006 law was passed that makes it a felony to protest within 500 feet of a funeral in response to the WBC pickets. Additionally, the WBC was sued by a dead soldier’s family in 2006 because they picketed his funeral. The court ruled in the WBC’s favor, stating that they were exercising free speech rights that are protected by law. In recent news, the group was featured in the 2009 film Bruno, and was counter-protested when they picketed outside of the Twitter headquarters last week.

Often defined as a hate group, the WBC claims that they are spreading God’s word, and they are doing a good deed by warning people that they will go to hell if they continue their “sinful” ways. The WBC spreads their message with extremely offensive signs, using language that is lewd and insulting. According to Zechariah Chafee, a philosopher who supports free speech that supports self-governance and democracy, this speech would be “worthless speech”. It does not promote social interest, and additionally, it can be argued that the speech is in the individual interest of the WBC. They are a group that continually offends society, and they refuse to understand the interests of other people or groups who are unlike them.

Although I like Chafee’s supposed outlook on the WBC, there are other philosophers who would support the WBC’s speech, for example, John Stuart Mill. Mill would ask if the WBC is harming anyone, and if so, is the harm legitimate or illegitimate. Mill states in his harm principle that the only purpose of prohibiting free speech against someone’s will is to “prevent harm to others.” Harm is an action that invades the rights of another person. Although the WBC is not inflicting physical harm on anyone, they are causing emotional distress that I believe has the potential to be harmful. They are insulting both major and minority groups by continually attacking their beliefs and values.

It seems as if the WBC is not violating Mill’s harm principle to a legitimate degree, but they are definitely violating both the offense theory and the respect theory. Joel Feinberg’s offense theory is based on the idea that the harm principle sets the bar too high, and some forms of highly offensive expression should still be prohibited even if they don’t violate the harm principle. Due to it’s “worthless” (lewd, obscene, slanderous, fighting words) nature, the WBC should not be allowed to continue their behavior under the offense principle. According to the offense principle and its relation to hate speech, Feinberg would say that the WBC’s hateful messages are no longer avoidable by the general public, and currently offend a large number of people. He would however, allow them to meet in private, and they could exercise their free speech there. The WBC is also violating the citizen-respect theory, because they are offending not only individuals but also groups, in particular, marginalized groups such as homosexuals and Jews.

I personally feel that under the offense and respect principle, the WBC should be banned from picketing and parading their offensive signs. I think that their outright displays of hatred are going beyond their right to free speech because they are no longer avoidable by the general public and they are targeting specific groups. I don’t think that the WBC should be banned entirely. They should be allowed to practice their beliefs in private, such as in their church, and maintain their website, since the public can choose whether or not they want to visit it.

Chaplinsky v. New Hampshire is one case that supports my argument. In this case, a Jehovah’s Witness was using a private sidewalk as a pulpit, causing a scene. Additionally, he verbally attacked a marshal, which led to his arrest in accordance with a New Hampshire law that prohibits directed offensive speech. The unanimous court decision in this case was that there are limited categories of speech which are not protected by the First Amendment. As stated by Justice Frank Murphy,“These include 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.” The WBC’s messages do breach peace due to their offensive nature, and they do more harm than good to society.

Although it can be argued that under Cohen v. California, the WBC would be able to continue spreading their messages, I wonder if this is accurate. The court ruling in the case states that "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." The WBC publicly displays their messages every chance that they get – it’s not an occasional action. The publicity of the WBC is more widespread than the famous “Fuck the Draft” jacket worn by Paul Cohen. And the four-letter word used on the jacket is only one of the many offensive words used by the WBC, not to mention their racial, anti-religion, and homophobic slurs. I agree that vulgarity is a necessary evil and that it is a side-effect in the exchange of ideas, but is the vulgarity employed by the WBC too over-the-top to accept given the WBC’s unappealing and offensive messages and ideas? Especially considering that few people share the WBC's beliefs except the people who are members of the church itself.

In conclusion, I feel that the WBC should be judged in accordance with Chaplinsky v. New Hampshire, and their free speech should be punished due to its violation of the offense and respect theories, and possibly the harm theory as well (depending on the definition given of “harm”). I support my stance with Chafee’s philosophy of democratic speech that promotes social interest, and I think that the WBC should be able to practice their free speech out of public view in accordance with Joel Feinberg's views on the offense principle and hate speech. I would not provide the WBC with absolute protection of free speech, because I think that their speech should be prohibited due it its high level of offensiveness to society. Therefore, I would use minimal scrutiny, in which the government must provide only a rational reason for their regulation and restriction of the WBC’s speech. If Mill’s harm principle proved to be applicable, I might instead look at the case under the lens of intermediate scrutiny, if it passed the test of clear and present danger. However, it doesn’t seem as though the WBC is causing any immediate or obvious risks, unless emotional harm and distress can be defined as dangerous and harmful.