Quarter in review

The study of issues surrounding the First Amendment and our rights to free speech has allowed me to come to many realizations about myself and what speech I would choose to protect.
When it comes right down to it, I've found it takes much more to offend me than I've ever really realized. Some of the cases had me puzzled as to why these issues needed to be taken to the Supreme Court to be solved. Then again, I am thankful they did because they have shaped the standards for speech that I am familiar with today.
I have also discovered that I am more of an absolutist than I thought. When I entered this class, I didn't really have a clear idea of what sort of speech I would protect and which speech I would restrict. But I've come to find that I value the opportunity we as citizens of the United States have to express ourselves. I'd much rather have to listen to speech I might not agree with than not have the opportunity to express it at all.
I have also come to the conclusion, specifically in regards to the animal cruelty speech, that my emotions tend to dictate how I feel speech concerning a specific topic should be treated.
In my blog about animal cruelty speech, without even realizing what sort of slippery slope claim I was making, I advocated making depictions of animal cruelty illegal because the act itself is illegal. This sounded great to me, being the animal rights activist that I am. Upon reading the comments Professor Atkins made about my blog, I realized what a huge logical error I'd made:
"Are you sure you want to argue that any behavior that is illegal automatically guarantees that depictions of that behavior are illegal? Shoplifting is illegal everywhere; should images of shoplifting also be criminal? Underage smoking is illegal; should images of teens smoking be illegal? Etc. In that case, no First Amendment exists because any behavior the gov’t declares illegal is automatically illegal to speak about or portray. I doubt you want to go that far so be sure to ground your argument for the animal cruelty law in an idea that isn’t quite so expansive."
Whoops...
Letting my emotions dictate my blog post did not work to my advantage in that case.
While I advocated for the absolute protection of speech in most cases, I don't think there is one philosopher or one theory that I could say I align myself with completely. It is just important to me that I don't let my personal biases or emotions get in the way of judging what speech deserves protection and what doesn't.

Animal Cruelty Porn: Why it should receive NO protection

Speech that harms typically receives less protection versus speech that merely offends. However, this is all in reference to when the speech is directed towards humans. What happens when the speech literally harms, as in maims or kills, another living thing? What if this living being isn’t a human? What if it is an innocent animal? Does this speech still deserve protection? In my mind, absolutely not. There is no room in a civilized society for depictions of cruelty towards an innocent animal. Such speech deserves absolutely no protection.

In the case of Stevens v. U.S. the argument was made that a human’s right to free speech trumps animal rights. This statement does hold some truth; animals clearly do not have the same abilities or rights as humans. But because of this, I believe it is important to remember that just because we are smarter and capable of speech and expression does not mean that we have the right to depict the exploitation, torture and killing of animals. Depictions of intentionally harming vulnerable creatures has absolutely no role in the expression of ideas. Furthermore, it is ridiculous to believe that depictions of such acts have any protection under the First Amendment. In this article in the New York Times, it raises the question of whether or not the government can decide that some forms of expression or speech have no social value. Zechariah Chafee makes an important distinction between “worthwhile” and “worthless” speech, I believe animal cruelty depictions certainly fall under the category of worthless. Depictions of animal abuse is not advancing our society in any way, it does not lead us anywhere in the search for truth.

Depictions of animal cruelty need to be lumped in the same category as child pornography, fighting words and obscenity—this sort of speech has no place in a civilized society. Exercising the power we have over animals simply because they can turns humans into monsters.
The Court of Appeals struck down the parallels to two cases of child pornography, New York v. Ferber and Osborne v. Ohio, because they believed that there is not a compelling interest in suppressing the commercial demand for images that depict cruelty towards animals or in protecting animals from exploitation. Why would the government not have a compelling interest in suppressing both the commercial demand for the images and in protecting animals?

Justice Smith argued that animals do not suffer by having these images out in the marketplace. This is true because the animal is probably dead! While the argument Smith is trying to make is that the animals cannot comprehend that they are being exploited, this is not what is at the heart of the issue. The fact of the matter is that another LIVING and BREATHING being is subjected to treatment that is unacceptable. What part of this “expression” deserves protection? But since animals lack the ability to communicate with us in a way that we can be sure we understand, we cannot say that the portrayal of animals in such videos isn’t more harmful to them than we assume. If the animals aren’t killed, they could certainly be traumatized or harmed otherwise and we would have no way of knowing.

“While animals are sentient creatures worthy of human kindness and human care,” Smith wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace (NYTimes.com).”

What sort of message are we sending if speech involving cruelty towards animals is even remotely protected? It is not parallel with the idea that animals are worthy of human kindness and human care if we allow such horrible imagery to be unpunished. We have a responsibility to ensure that animals are not treated in such a disgusting manner and that those who do treat them that way are punished. So why should their speech be protected? We need a law that protects animals because they do not have a voice. It is a responsibility of humans to stand up for those without a voice, this includes furry four-legged friends.

Protect Sally Mann's photography

What parent doesn’t have pictures their kids playing with toy boats in the bathtub? Or of the time their child decided it was a good idea to take off their diaper and run around in the backyard? It is a fact of nature: kids are occasionally naked and their parents are going to want to take a picture to look back on the “days of innocence” at some point down the road (or use them to embarrass you…). I have a cousin whose kids constantly get undressed at family gatherings. Everyone finds it hilarious; grandparents, aunts and uncles snap a few pictures, everyone moves on with their lives. No one is accused of producing child pornography

While family members aren’t zooming in on genitals as some of Sally Mann’s photography does (for example, Drips), and their pictures aren’t being published, I believe both deserve equal protection. Sally Mann’s artwork is showcasing her own children and Osbourne v. Ohio states that possession of or viewing a child in a state of nudity is unacceptable unless “the minor’s parents or guardians have consented in writing to such photographing or use of the minor.” Much as members of my family would expect their rights to be protected for taking pictures of my cousin’s kids running around my grandparent’s backyard without clothes on. In both cases, parents are providing consent. I believe that this should be expanded from Ohio to recognize a nationwide “parent consent” exception with the First Amendment in regards to photos of their children. However, I believe that this should only apply to photographs or other mediums in which children are NOT participating in sexually explicit behavior.

Mann’s work does indeed have artistic value; Immediate Family captures the innocence of her children through a series of photos. One particular photo I believe showcased this innocence particularly well was Wet Bed. When critics of Mann’s work have zoomed in on a particular part of a single photo and claimed that it is child pornography, it is degrading to the work and takes it completely out of context. It is possible to make many, many photographs offensive by zooming in or excluding part of the photo. It skews and degrades the photo, takes it out of context and distorts what the photograph was originally about. In the case of Mann’s photography, and in the case of all similar photography done by parents, a SLAPS test would be beneficial because this would protect and preserve the artistic nature of the photography.

In addition to taking into consideration whether or not the work lacks serious literary, artistic, political or scientific value, there is another standard that Miller v. California lays out that I believe should be applied to Mann’s photography. As I stated earlier, zooming in on a part of a photo defeats the purpose of the photo entirely. If the photographer had intended for a photo to only focus on one part of a photo, they would have taken it that way. So zooming in on it takes the photo out of context. The Court ruled in Miller v. California, that the work would not be considered obscene if “the average person, applying contemporary standards of the state or local community, would find that the work taken as a whole, appeals to the prurient interest.” Along with the fact that the work should be taken as a whole, I believe it is safe to say that photos of nude children do not appeal to the prurient interest of an average person.

This photo of Sally Mann's son has sparked some serious controversy. Under Osbourne v. Ohio, I would not consider this "graphic exhibition of the genitals." I believe that in this case, a “graphic exhibition of the genitals” would have to display the child engaging in sexual activity. It is possible to have photos that portray nudity without appealing to prurient interests. Nude photos of children is definitely one such case.

A later court case brought the Child Pornography Prevention Act of 1996 into being. It states that any visual depiction of minors engaging in sexually explicit conduct is illegal. Mann’s photography does nothing of the sort. The images in Mann’s book are not, in my opinion, patently offensive unless taken out of context or distorted in some way. And in class when some of the photos were distorted, it definitely changed my perception of the photography.

Sally Mann’s artwork should absolutely be protected. It does not showcase her children participating in sexually explicit conduct. Rather, her photos capture her children at a point in their lives where they haven’t yet been exposed to a society in which they are made to feel ashamed of their bodies. In my opinion, everyone could learn a lesson from the way that Sally Mann has clearly made her children feel comfortable with themselves and their bodies just the way that they are . I believe this is the case with any such photography of children.

The Perverse Adult?

In a country obsessed with body image, it is so strange to me that the discussion of sex is so taboo. We love to look at “beautiful” people, but can we not look inward and discuss something that is innately human? For some reason, in the United States we are raised with the idea that sex is something not to be talked about, even something to be ashamed of if you do talk or think about it. It is imperative that we change the way sex is perceived in this nation, and that starts with the laws surrounding the protection of sexual speech.

With the new technology that is evolving every day, people are finding more and more ways to express their innermost sexual desires. What is so wrong with that? New mediums like webcamming and “sexting” allow people to express their sexuality in a different and less public way. It is ridiculous to me that people are being punished for things that they are doing in the privacy of their own homes, on computers, phones or other technological devices that they have purchased and own. The state has absolutely no right to intervene in the most private, and arguably one of the most important, parts of someone’s life. Indecency should not be banned on the Internet, rather it should be zoned, much as FCC v. Pacifica makes a “safe harbor” period for broadcast television and radio.

Reno v. American Civil Liberties Union struck down portions of the Communications Decency Act, ruling them unconstitutional because they abridged First Amendment freedom of speech rights. The case held that the Internet is given the same protections that other mediums like the print press have. As long as the content posted does not fall into the hands of those under the age of 18, or the creator does not knowingly put the materials into the hands of a minor, there is no problem in my mind. I would protect the creator in any case unless they knowingly distribute the materials to minors. If adults are voluntarily posting such content, I see no problem. I would, however, say that such content needs to be much more difficult for minors to access. I agree with the idea presented by Justices O’Connor and Rehnquist, the need for some sort of ‘adult zone’ on the internet that would prohibit adult content from being posted where minors have access. If ‘adult materials’ were distributed outside of the ‘adult zone,’ the distributor should be punished. The creator needn’t be punished unless the creator is the one distributing the materials outside of the ‘adult zone.’

Sexual speech and expression on the Internet is not indecent and I would not punish it as such under FCC v. Pacifica. While I would protect sexual speech, I would advocate that there is a time and a place for it and it needs to be kept away from children as much as possible. That being said, I believe that it is extremely important that parents more closely monitor what their children are being exposed to. Parental controls were created for a reason. Parents need to take more responsibility for what their children are seeing and hearing. This country needs to, as a whole, start taking more responsibility instead of trying to find someone to blame when they don’t like something.

As I have said before, we need to change the connotations about sex in this country. People need to realize that speaking about sex isn’t something to be ashamed of, though it has been presented that way in this country. I find it ridiculous that people say such speech causes harm. Offense, maybe. Harm, absolutely not.

As far what is considered obscene, the case of Miller v. California lies out a three pronged approach. I agree that obscene sexual speech should charged criminally because it has no literary, artistic, political or scientific value. The problem that I have with the court ruling is that we are bound by what “an average person, applying contemporary local community standards” finds obscene. It is my belief that people in this country are offended entirely too easily. It is hard to speak at all without offending at least one person. Sexual speech is bound to offend more than what I would consider an “average” person to be. Also, the terms “average” and “contemporary local community standards” are completely relative and vary even from neighborhood to neighborhood. It is impossible to dictate what is average and what a community standard is.

I would absolutely advocate for a national standard for sexual speech, as there is with political speech. The idea of variable standards make this issue far more complicated than it should be. While there is a time and a place for sexual speech, I do not believe that it inflicts harm on anyone. Sex is the most natural thing in the world, talking about it is not going to harm anyone, even children. It can certainly offend, but it absolutely does not harm. The government should not assume that all materials are “harmful” or offensive, rather, they should be required to prove that the materials could “harm” or offend.

Protected speech: Religion

A very fine line exists when it comes to the discussion of religion and protected speech. On one hand, the religious beliefs of a human being should not be subject to judgment or scrutiny. However, it is the responsibility of journalists, and of all people, to critically assess the human race and the aspects of our lives.

It cannot be denied that religion is often responsible for controversy, conflict and the loss of human life. Religion can fuel the fire on an unrelated issue and end in war and catastrophe. Bringing up the topic of religion in conversation is a surefire way to offend or insult. One’s religion is so deeply personal; it feels like a direct attack on your person when your religion is attacked. But the actions of some religious extremist groups call the integrity of the entire religion into question. Such actions cannot be ignored – we, as journalists, have a responsibility to examine and analyze.

I believe for the sake of this discussion that it is important for me to note my views on religion. I was raised in a household where religion simply did not exist. I attended a Jesuit high school and elected to continue my Jesuit education through college. I would call myself a spiritual agnostic. I have no qualms as far as discussing my religious beliefs with anyone who can keep an open mind. That being said, I personally would not be offended if my religious views were attacked but I know how hurtful it could be for others.

While I do favor laws that protect and individual universal civil liberty, I see value in going about communication and religion from both directions. Discussions surrounding religion have the potential to be the most offensive discussions of all, especially in the case of certain journalists creating deliberately offensive and controversial content (i.e. Jyllands-Posten). At the same time, we cannot go around walking on eggshells because we are concerned that an opinion one has might offend another. Nothing would ever get accomplished if we so carefully measured every word we wanted to speak or print.

I firmly believe speech and laws concerning protected speech should continue to function as they do now. We live in a society where we have a marketplace of ideas, we place value in public opinion and the ability that all citizens have to raise their voice. But with this comes the fact that we sometimes have to hear some things that we don’t want to hear. While I find everything about the Westboro Baptist Church offensive, horrible and wrong, to take away their rights to express their opinions would be hypocritical. However, I believe there is obviously a time and a place for expressing your opinion; a soldier’s funeral is certainly not the time or the place.
Some of the most important movements in our history have risen out of the modest limits we place on speech. The civil rights and women’s rights movements were controversial at the time but look at all of the good they produced. We should not place limits on speech because we won’t know what we might prevent giving rise to. We need to continue to value political freedom because it is something that makes our country unique.

That being said, I would not punish the speakers who created the “Ecce Homo” speech or Jyllands-Posten. As I stated earlier, we cannot worry that everything we say will offend someone. If that were the case, we would never be able to speak. Especially when it comes to speaking about religion, it seems that we can never be too careful because it seems as though everything said about religion becomes offensive to someone.

As far as teaching intelligent design in public school, I think that religion absolutely needs to be kept out of public schools. As protective (and sometimes crazy) people can be about their religion, they are probably more protective (and potentially crazy) when it comes to their children. Bringing the education of their children about religion is asking for controversy. And bringing the issue of religion into what is taught as a scientific matter would be wrong. I believe in a private school one could discuss the strengths and weakness of evolution/intelligent design but absolutely not in a public school. I have heard of schools that allow parents to sign a permission slip for students to opt out of the evolution part of the curriculum and as much as I think that children need to be exposed to ideas other than those of their parents, this could be a much more reasonable way to solve the problems that not teaching intelligent design or creationism in a school might create for some.

Al-Timimi and Brandenburg

“While bodies were still being pulled” from the wreckage that once was the World Trade Center, Muslim scholar Ali Al-Timimi held a meeting to discuss how Muslims could protect themselves about what he believed was an imminent attack on the Muslim people. When considering this case alongside the Brandenburg case, the biggest issue that I see with both cases is defining immanency. How can we know what words will incite people to act in a particular way? Why does it matter if we are in a state of war or a time of peace? It is my belief that the lower court ruled unconstitutionally in this case. The country was not in a state of war. It was in a state of shock, disbelief and mourning, yes, but war had not officially been declared. However, I would argue that Al-Timimi’s speech should have been protected even if we were in a state of war .

How can one decide if another’s words will inspire an attack? How can anyone be sure that the words they speak on a daily basis won’t incite violent action from another person? True, there are cases where words are meant to incite and inspire action. It is also true that within weeks of September 11^th and the meeting that Al-Timimi held, his followers travelled to Afghanistan to undergo training. Some have said that Al-Timimi praised the attackers responsible for the largest terrorist attack on American soil. According to a witness testimony during the case, “Al-Timimi stated that the attacks may not be Islamically permissible, but that they were not a tragedy, because they were brought on by American foreign policy .” We cannot punish someone for expressing their own opinions, no matter how much we dislike what they have to say. Such punishment creates even more serious problems. However, Al-Timimi did more than just express an opinion; he encouraged others to go receive training for an attack against he felt was imminent against his people.

Words are not matches; we must work to ensure that speech remain protected for all. When we protect some speech but not all speech, it becomes a slippery slope. Where do we draw the line and more importantly, how is it that we decide what is protected and what isn’t? There are many groups or people whose opinions I do not agree with but I would rather their speech be protected and have to listen to them voice their opinions than never hear anyone’s opinions.

Alexander Meiklejohn’s idea of Absolute Protection for Political Speech states that “freedom of speech” is “absolutely privileged and may not be abridged – even by the clear-and-present-danger rule (Tedford and Herbeck 437).” Meiklejohn would also propose that words are not matches and that we should punish the actions themselves, not the speech that some might believe brought on that action.

I would absolutely uphold Brandenburg v. Ohio and overturn the lower court’s ruling on the Al-Timimi case. Brandenburg v. Ohio required that the government prove that the danger presented was real, not imaginary and even protects threatening speech. The only case in which dangerous or threatening speech can be punished is if 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.”

It could be argued that Al-Timimi’s speech was “talking big” or “blowing off steam” since he himself did not travel to the Middle East to receive training. Tedford and Herbeck explain that according to the Brandenburg decision, the “expression must have a serious intent to incite illegal action… being urged must be imminent—that is, immediate, impending to occur.” Al-Timimi’s followers did not IMMEDIATELY fly out to Afghanistan, nor did they ever participate in unlawful action. I would argue that in light of the attacks on September 11, 2001, everyone was acting on raw emotion; not only Al-Timimi but those responsible for prosecuting him as well.

It is time that we start holding individuals responsible for their actions. In the end, it wasn’t Al-Timimi’s words that sent his followers to Afghanistan. It is impossible to know if they would have had that idea on their own but ultimately it was their own decision to go across seas and receive training. We have to stop placing so much emphasis on systems and placing blame in anything but the actions themselves and those that committed unlawful actions. The speech itself is not the problem. The problem lies in a society that cannot hold themselves responsible for anything, placing blame on anyone but themselves whenever they possibly can.