At the beginning of this course, I thought communication justice was no-holds barred free speech under just about any circumstances. But as I was consistently faced with expression that I was uncomfortable defending, that portrait of the truth-spouting revolutionary soon faded. As we began to slough through the history of free speech and how its been interpreted by philosophers, theories, and court cases in the United States and abroad, I realized that the first amendment is not as stagnant and solid as I’d first imagined. The crux of many of the issues that have given me the most to think about pose a speaker’s right to expression against the consequences of that message being seen or heard, and I’ve consistently wavered between the offense and harm theories with respect to this dilemma.
I really like John Stuart Mill’s interpretation of John Milton’s “marketplace of ideas” approach to free speech. Especially Mill’s line, “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered” as it advances truth juxtaposed with his view that “The liberty of the individual must be thus far limited; he must not make himself a nuisance”. These two aspects of Mill’s philosophy—one side that relies heavily on a discussion-promoting principle that adheres to the harm-theory, and another that acknowledges the instances where one’s intents at expression are far more detrimental than beneficial to society—are something I’ve wrestled with in most of my posts. Beginning with the outcry caused by the Jyllands-Posten cartoon, and the violent riots this cartoon spurred, a direct harm theory didn’t seem to be stringent enough to rein in speech that could be harmful. I was alarmed to find myself drifting towards an idea of restrictions based on the offense theory until I realized the repercussions that would create. At this point, I turned to John Stuart Mill’s harm principle, which emphasizes the necessity of discussion, irritation, and even outrage if we ever hope to move beyond the status quo and really explore and challenge one another and ourselves in our most core beliefs.
I’ve been thinking about the cases that gave me special difficulty, and Westboro Baptist Church and the regulation of obscene speech come to mind. Despite the fiercely radical view that WBC has, and perhaps because of this, a larger public discussion has resulted that not only addresses free speech rights, but really questions the boundaries of expressive value. The ire inspired by their messages is also an invitation to step back and see how these ideas are being dissected by the public-at-large. And in a way, this is what free speech is all about. People have a right to say malicious things, and the line between offense and harm (harmful offense?) is blurry, but the kind of debate spurred by this seems like a productive part of a democratic society (which makes me think of John Milton and John Stuart Mill). I’m willing to push the offense theory to the point of harm in most cases, though I do think particular care should be taken when applying a harm theory internationally and across sensitive societal lines. In volatile situations like which occurred in Kangura and in light of what transpired in Jyllands-Posten I see the merit of applying the “fighting-words” precedent established in Chaplinsky. This stretches Mill’s corn-dealer example of fighting-words to any volatile situation, produced in any medium (not only in person as Mill posits).
I wrote that the United States has gone the furthest in creating comprehensive and fair libel laws by extending the most protection to journalists and requiring different burdens of proof based on the public or private status of the libeled person. The method of assigning burden of proof is especially brilliant and the specificity of this approach and the realization that a one-size fits-all legal precedent might not always be the best way to mete out free speech is an idea that I really like. It is a sort of equalizing principle that is based on context more than content and it could possibly be applied to other free-speech cases where the line between constitutional and unconstitutional speech is blurry.
After looking at some of my posts and then examining the Universal Declaration of Human Rights, most of the articles now seem painfully vague and contradictory. And Article 29 seems to be one of the few that addresses the conflicts that are bound to occur when free expression clashes against “securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
In my discussion of sexting and child pornography laws, I suggested that New York v. Ferber would benefit from placing a distinction between children, adolescents, and adults where sexual speech is involved. One of the distinctions between autopornography and the New York v. Ferber case is that teens are creating their own images, which (even though they may be minors) are not the result of abuse and are not created for adults. I don’t think adolescents should be prosecuted as criminals for sexting and I find the current convictions of teenagers (and their further designation as sex-offenders) grossly contrary to the aims of the original law. Further, sexual speech that occurs between children and adults with no evidence of abuse and despite parent or guardian consent should qualify as child pornography (I’m thinking of some of Sally Mann’s images and the film The Tin Drum) because these images can easily be made obscene and as the children grow up they could be damaged by the existence of such images. Film depictions of an adult actor playing a child engaged in sexual speech should be protected since an actual child is not involved.
One thing I would change about my original post on sexting is the philosophical grounding I used. Originally, I thought that by realizing the value of sexual expression one could apply Zechariah Chafee’s worthless/worthwhile speech philosophy (Tedford, 435). I chose Chafee because it’s crucial that the court draws a line between actual harm (as in child pornography) and sexual expression (as occurs in adolescent to adolescent sexting or autopornography). Given Chafee’s proclivity for promoting the social interest as opposed to individual expression, it’s a difficult case to make. Though Edwin Baker’s liberty theory seems most apt to apply to this case, it is a blunt criticism of the “marketplace of ideas” philosophy that Milton and Mill support (and an idea that I particularly like) (Tedford, 441). Baker proposes fewer restrictions on free speech overall and obscenity in particular, arguing that “the First Amendment should protect the right of individuals to make their own choices about creating or receiving sexual materials” but that commercial speech should not be protected since it, “lacks the crucial connections with individual liberty and self-realization that are central to justifications for the constitutional protection of speech” (Tedford, 442). Upon revision, I think this would be much better philosophical support for my argument concerning adolescent sexting, though I would not apply it to many of the other cases we’ve discussed due to some of the other elements that Baker promotes (like his views on permit requirements and the commercial press) (Tedford, 442).
Expanding to the more general obscenity cases we discussed, the philosophy I’ve adopted is rooted in the dissent Justice Brennan wrote in Paris Adult Theatre which emphasized the problems inherent in an approach to obscenity that depends on vague and subjective terms like “community standards,” “prurient interest”, “patent offensiveness”, and the slaps categories (Tedford, 145). The categories established in Miller v. California should undoubtedly be revised and relaxed. As evidenced in Castillo v. Texas, applying an offense theory based on such vague terms has resulted in unnecessary prosecutions. At the same time, I also agree with the FCC’s approach to regulating obscenity in mediums that are accessible to children and the choice to differentiate between adult content and content that is acceptable to society-at-large that was established in Pacifica. In either of these instances, based on existing laws, I think the burden of proof for legally offensive speech should rest with the speaker. In Castillo, the accused was able to find ample evidence that satisfied the slaps clause, even though Castillo’s conviction was (I think incorrectly) upheld. Ideally, Miller would be reexamined so as to redefine what actually constitutes obscene speech.
Even though the Hicklin rule seems a bit antiquated and puritanical, it seems like the best way to establish a distinction between consenting adults (or adolescents) who elect to view obscene expression and children or non-consenting adults (or adolescents) whose minds could be depraved or corrupted by the offending material. Overall, Chafee’s philosophy is the most apt to how expression should be regulated when children or the non-consenting are involved since it prescribes a quasi-harm theory towards speech that is dangerous or “worthless” to society, and should therefore be circumstantially constrained (Tedford 436). I think if these suggestions were applied to Castillo v. Texas, the outcome would have been much different. Obviously, I am in favor of distinguishing between children, adolescents, and adults in order to extend and relax speech restrictions based on the age and consent of the person(s) involved and I think these distinctions would add much-needed clarity to what’s been established in Miller v. California.
In US v. Stevens, US 3rd Court of Appeals, I argued that the law should be revised in order to make its prohibitions more explicit. As it now stands, the law relies on broad provisions that would be much more effective in prohibiting crush videos and expressions promoting animal cruelty were they narrowed. I think the application of the Ferber precedent was very clever in arguing for the necessity of the restriction of speech but I’m in agreement with the assertion that child pornography is harmful in both its production and its continued existence whereas videos depicting animal cruelty are most harmful in their production and then harmful to society (but not the animal) in their continued existence. I do think the government has a compelling interest in preventing animal cruelty, but not to the extent that it should not take this opportunity to better tailor the statute that is being challenged in U.S. v. Stevens, 3rd Court of Appeals.
In the end, most of my current conception of communication justice revolves around John Stuart Mill’s harm theory, though I am in favor of an incitement principle where fighting-words and volatile situations are concerned. I’ve also repeatedly used Chaffee’s philosophy of protecting speech that has a societal value but being less forgiving of speech that is harmful (especially where children are concerned). I’m still troubled by unclear laws and restrictions on speech that have unintended consequences due to over- or underbreadth or lack of clarity. I think all restrictions of expression should be cast as narrowly as possible to maintain a healthy societal tension between the right to speak and the consequences that such expression inevitably births.
Tuesday, March 16, 2010
Animal Cruelty v. Free Speech
In U.S. v. Stevens, 3rd Court of Appeals Robert Stevens was charged with, ”knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.” selling depictions of animal cruelty, which is illegal according to the current law. While challenges to this law have been few and far between, the court is dealing with a question of overbreadth due to the current wording of the law. As it now stands, the law regarding depictions of animal cruelty could render the speech contained in hunting videos, bullfights, and other imported videos illegal. The court runs into a few issues here that need to be addressed. The first issue the court must address is whether it is constitutional to show depictions of animal cruelty that occurred in an area where what we consider cruelty is legal. Second, the court must come to terms with the original intent of the law, which was to dry up the market for crush videos, which show small animals being smashed, usually by a woman wearing high heels, that appeal to a very specific sexual fetish. Third, in determining whether the current law is overbroad, the court would have to test its logical bounds--to what degree can depictions of animal cruelty be legally depicted? Does it matter if the cruelty took place abroad? What distinguishes animal cruelty that appeals to the prurient interest from depictions that could be protected by a slaps clause?
In testing the bounds of this case, the court justices must position legal or unchallenged depictions of animal cruelty against what the current law forbids. The intent of this law is to stifle the production of crush videos and prohibit depictions of animal torture that might encourage individuals with antisocial tendencies (as expressed by finding pleasure in harming animals) towards further antisocial behavior directed against humans. This law is special because, as stated by the 3rd Court of Appeals it is asking the government to carve out a “new category of unprotected speech.”
At first glance, the effect of this law seems worthy. Since the location, time, and participants in these videos are often unknowable, it makes sense to prosecute the person selling such depictions. The law as it stands does include a slaps clause, which would protect depictions of animal cruelty that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
While I initially believed that the slaps clause would provide sufficient constitutional protection, the Supreme Court’s hypotheticals test its bounds. The slaps clause seems sufficient to include depictions of bullfighting (artistic, educational, and historical value), and even very gruesome videos of animal cruelty like those shown in the PETA marketing videos (educational and political value). The case gets more difficult when hunting videos are involved (educational value?), and downright confusing when bullfighting is poised against cockfighting or dog fighting. The Court points out that even a slaps clause in this context doesn’t seem sufficient to make a clear distinction between protected and unprotected speech. Additionally, since the burden of proof falls on the defendant, this lack of clarity could indeed chill expression.
Neal Katyal argues to the Supreme Court that the issue of overbreadth does not come into question concerning the challenged statute on an as-applied basis. I take this to mean that, in light of the multiple hypothetical questions posed by the court (i.e. hunting, stuffing a goose for foie gras), the statute would only be applied to videos of illegal activity that could potentially further the market for such activity (i.e. dog fighting and crush videos). This is problematic. I don’t see the point in letting an unclear law stand just because it isn’t applied in every case where it could apply. This statute seems both unclear and overbroad, even though in its application this hasn’t necessarily been the case.
I realize Congress will have difficulty creating a definition of prohibited materials without inadvertently condemning speech that should be legal, however, a more specific provision than a slaps clause in conjunction with a provision for depictions of legal behavior (i.e. hunting), and one that prohibits depictions of animal cruelty that appeal to the prurient interest (crush videos) should be added to narrow the definition and really carve out a specific type of speech that the government has a compelling interest in forbidding. The Supreme Court should uphold the 3rd Court of Appeals ruling and entrust Congress with writing a law that is more focused and comprehensive.
The 3rd Court of Appeals clearly applies John Stewart Mill’s approach when it argues that the government lacks a compelling interest in maintaining the challenged law. The court cites Texas v. Johnson, “If there is a bedrock principle underlying the First Amendment, it is that the Government ma not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”. Echoing Mill’s philosophy, the court argues that just because a majority finds an idea unpleasant or distasteful, does not mean that the individuals voice should be suppressed.
It seems like the members of the Supreme Court are leaning towards applying Edwin Baker’s Liberty Theory of Free Speech which, “protects self-expressive and creative conduct that involves people living their values…Given its emphasis on individual autonomy, the liberty theory protects nonviolent, noncoercive practices even if they are not welfare maximizing, but does not protect violent or coercive practices even if they are”(Tedford, 442). It is just running into trouble when individual autonomy clashes with animal harm.
I’m uncomfortable with letting a vague law stand and I don’t believe it can pass the Supreme Court. I think the current law is unconstitutional because it does not clearly state the breath of its prohibitions. If its intent is to dry up the market for illegal activity than the law should be far more explicit. However, based on the as-applied history of this law, it seems that letting it stand would do no substantial harm. The kind of speech that it prohibits is undeniably offensive but because the law oversteps its bounds and lacks clarity, congress should pass a more concise law that explicitly outlines the prohibited speech. Laws, especially those dealing with First Amendment prohibitions, should be cast as narrowly as possible. A law this broad will be ineffectual and vulnerable to further challenges if it is not revised.
In testing the bounds of this case, the court justices must position legal or unchallenged depictions of animal cruelty against what the current law forbids. The intent of this law is to stifle the production of crush videos and prohibit depictions of animal torture that might encourage individuals with antisocial tendencies (as expressed by finding pleasure in harming animals) towards further antisocial behavior directed against humans. This law is special because, as stated by the 3rd Court of Appeals it is asking the government to carve out a “new category of unprotected speech.”
At first glance, the effect of this law seems worthy. Since the location, time, and participants in these videos are often unknowable, it makes sense to prosecute the person selling such depictions. The law as it stands does include a slaps clause, which would protect depictions of animal cruelty that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
While I initially believed that the slaps clause would provide sufficient constitutional protection, the Supreme Court’s hypotheticals test its bounds. The slaps clause seems sufficient to include depictions of bullfighting (artistic, educational, and historical value), and even very gruesome videos of animal cruelty like those shown in the PETA marketing videos (educational and political value). The case gets more difficult when hunting videos are involved (educational value?), and downright confusing when bullfighting is poised against cockfighting or dog fighting. The Court points out that even a slaps clause in this context doesn’t seem sufficient to make a clear distinction between protected and unprotected speech. Additionally, since the burden of proof falls on the defendant, this lack of clarity could indeed chill expression.
Neal Katyal argues to the Supreme Court that the issue of overbreadth does not come into question concerning the challenged statute on an as-applied basis. I take this to mean that, in light of the multiple hypothetical questions posed by the court (i.e. hunting, stuffing a goose for foie gras), the statute would only be applied to videos of illegal activity that could potentially further the market for such activity (i.e. dog fighting and crush videos). This is problematic. I don’t see the point in letting an unclear law stand just because it isn’t applied in every case where it could apply. This statute seems both unclear and overbroad, even though in its application this hasn’t necessarily been the case.
I realize Congress will have difficulty creating a definition of prohibited materials without inadvertently condemning speech that should be legal, however, a more specific provision than a slaps clause in conjunction with a provision for depictions of legal behavior (i.e. hunting), and one that prohibits depictions of animal cruelty that appeal to the prurient interest (crush videos) should be added to narrow the definition and really carve out a specific type of speech that the government has a compelling interest in forbidding. The Supreme Court should uphold the 3rd Court of Appeals ruling and entrust Congress with writing a law that is more focused and comprehensive.
The 3rd Court of Appeals clearly applies John Stewart Mill’s approach when it argues that the government lacks a compelling interest in maintaining the challenged law. The court cites Texas v. Johnson, “If there is a bedrock principle underlying the First Amendment, it is that the Government ma not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”. Echoing Mill’s philosophy, the court argues that just because a majority finds an idea unpleasant or distasteful, does not mean that the individuals voice should be suppressed.
It seems like the members of the Supreme Court are leaning towards applying Edwin Baker’s Liberty Theory of Free Speech which, “protects self-expressive and creative conduct that involves people living their values…Given its emphasis on individual autonomy, the liberty theory protects nonviolent, noncoercive practices even if they are not welfare maximizing, but does not protect violent or coercive practices even if they are”(Tedford, 442). It is just running into trouble when individual autonomy clashes with animal harm.
I’m uncomfortable with letting a vague law stand and I don’t believe it can pass the Supreme Court. I think the current law is unconstitutional because it does not clearly state the breath of its prohibitions. If its intent is to dry up the market for illegal activity than the law should be far more explicit. However, based on the as-applied history of this law, it seems that letting it stand would do no substantial harm. The kind of speech that it prohibits is undeniably offensive but because the law oversteps its bounds and lacks clarity, congress should pass a more concise law that explicitly outlines the prohibited speech. Laws, especially those dealing with First Amendment prohibitions, should be cast as narrowly as possible. A law this broad will be ineffectual and vulnerable to further challenges if it is not revised.
Monday, March 8, 2010
Is It Worth It to Protect Sexting?
The national community as a whole takes issue with teens being classified as sex offenders for engaging in normal acts of sexual expression that are now being facilitated by a technology that the law has had no prior method of regulating. The proliferation of sexting, autopornography, and sexual expression amongst teenagers with cellphones, webcams, and other previously nonexistent forms of visual communication is confusing the legal system, which has no way to deal with adolescents who create and distribute these images besides charging them with the creation, possession, and distribution of child pornography.
In January, for example, three teenagers in Lacey, WA were charged with “dealing in depictions of minors engaged in sexually explicit conduct”—a class C felony that requires registration as a sex offender. Rick Peters, of the Thurston County Prosecutor’s office told the Seattle Post-Intelligencer, “Juveniles who are committing certain types of sexual crimes do have to register as sex offenders, but certainly that is the most serious sanction that would go along with this charge”.
The public interest in these charges and others like them wavers between horror that teens are texting nude pictures of themselves to their peers and shock that these same teens are being charged with felonies related to child pornography.
Its significant that the charges against these teens were recently amended and that the felony charges were dropped in favor of a “telephone harassment” charge, a gross misdemeanor punishable with community service and the curious requirement of teaching their peers about the “dangers of sexting”. Its important to note that under the current law, teens engaged in sexting would go to jail or be forced to register as a sex offender if convicted of the child pornography charges. The prosecutor’s reluctant stance on this issue and decision to pursue misdemeanor charges instead of approaching the child pornography charges is in step with a national discomfort with punishing children for sexting or autopornography.
Short of sidestepping the issue altogether by doling out misdemeanors for sexting, the only way to prevent the unjust prosecution of adolescents is to create a provision that separates the depiction, possession, and distribution of adolescent sexual expression that is created by adolescents and privately distributed between adolescents without monetary incentive from child pornography. This is, admittedly, a mouthful, but it speaks to the core issue of protecting adolescents engaged in normal, healthy sexual expression from being prosecuted as adults who are involved with exploiting children through child pornography.
The Supreme Court held in New York v. Ferber that the states should responsible for regulating pornographic depictions of children primarily as a means of protecting children from harm. Justice White writes, “The use of children as subjects of pornographic materials is harmful to the psysiological, emotional, and mental health of the child.” The court also exempted child pornography from First Amendment protections in order to eliminate the market for this kind of material. It emphasizes the necessity of this exemption as a way to destroy the economic motive for the creation of child pornography.
Sexting and adolescent autopornography are not meant for adults. For that reason it is unlike New York v. Ferber, the court standard for prosecuting child pornography, where Paul Ferber was convicted for selling a video of two young boys masturbating to an undercover police officer. The distinction between this case and that of the Lacey teens is clear. Ferber was decided with the aim of protecting children from exploitation. In the case of the Lacey teens, there is no monetary incentive, no children are harmed by the production of the material (in fact, the producer is also the “victim”), and the material is distributed amongst teenagers.
On the other hand, the danger in relaxing the current (although somewhat absurd) laws against child pornography in regards to teen sexting is twofold. First, were adults in possession of this material, and were a market to arise for it, the necessity of the current law would be clear. Second, teens involved in sexting run into one of the original reasons for destroying child pornography; that its very existence is psychologically damaging to its victim. That is to say that in ten years, the Lacey teen who took a nude photograph of herself in a mirror could suffer severe psychological consequences. While this case (i.e. the willful and intentional distribution of autopornography), is different from a child pornography case in which the existence of the material has the potential to make the victim recall episodes of abuse, the question must be posed whether past choices are equivalent to past abuse. I would argue that the teens engaged in sexting are, as evidenced by the Lacey case, making a decision of questionable judgment from the beginning. By creating the photo and distributing it, they trust the recipient(s) not to reproduce or distribute it. In the somewhat likely event that the photo is redistributed, the humiliation amongst one’s peers really does seem to be punishment enough. Adolescents who want to engage in sexual expression should be responsible for the consequences, but these consequences should certainly not include a felony charge.
A best-case scenario under the current law would result in a new provision that would reduce the sexting charges to a misdemeanor (similar to what was done in the Lacey case). But in an effort to really address sexual expression amongst adolescents, the court would have to validate it as worthwhile expression. Be that the exploration and expression of one’s sexuality or some other value.
As always, a line will have to be drawn regarding the protections allowed to sexting; and perhaps the best way to approach revising the law would be to establish a provision that holds more closely to the harm principle by creating a distinguishing principle between adolescent sexual expression and child pornography.
Philosopher Zechariah Chafee, in his defense of speech in the social interest writes that restrictions of speech must be achieved while preserving the balance between public safety and the “search for truth”. Chafee writes, “the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled”. Though Chafee is most passionate about protecting political speech and “worthwhile” speech that serves the public interest, he’s less apt to protect speech that threatens “the social interest in order and morality.” Adolescent expression, especially expression of sexuality, which can be thought of as one of the most basic and necessary human expressions surely seems like worthwhile speech. By applying Chaffee’s restraints on speech that endanger safety, I think the court could draft a provision that protects adolescent sexual expression by differentiating it from child pornography, because, while they appear to be the same according to the law as written in Ferber, these are really two very different kinds of expression that call for very different legal repercussions.
In January, for example, three teenagers in Lacey, WA were charged with “dealing in depictions of minors engaged in sexually explicit conduct”—a class C felony that requires registration as a sex offender. Rick Peters, of the Thurston County Prosecutor’s office told the Seattle Post-Intelligencer, “Juveniles who are committing certain types of sexual crimes do have to register as sex offenders, but certainly that is the most serious sanction that would go along with this charge”.
The public interest in these charges and others like them wavers between horror that teens are texting nude pictures of themselves to their peers and shock that these same teens are being charged with felonies related to child pornography.
Its significant that the charges against these teens were recently amended and that the felony charges were dropped in favor of a “telephone harassment” charge, a gross misdemeanor punishable with community service and the curious requirement of teaching their peers about the “dangers of sexting”. Its important to note that under the current law, teens engaged in sexting would go to jail or be forced to register as a sex offender if convicted of the child pornography charges. The prosecutor’s reluctant stance on this issue and decision to pursue misdemeanor charges instead of approaching the child pornography charges is in step with a national discomfort with punishing children for sexting or autopornography.
Short of sidestepping the issue altogether by doling out misdemeanors for sexting, the only way to prevent the unjust prosecution of adolescents is to create a provision that separates the depiction, possession, and distribution of adolescent sexual expression that is created by adolescents and privately distributed between adolescents without monetary incentive from child pornography. This is, admittedly, a mouthful, but it speaks to the core issue of protecting adolescents engaged in normal, healthy sexual expression from being prosecuted as adults who are involved with exploiting children through child pornography.
The Supreme Court held in New York v. Ferber that the states should responsible for regulating pornographic depictions of children primarily as a means of protecting children from harm. Justice White writes, “The use of children as subjects of pornographic materials is harmful to the psysiological, emotional, and mental health of the child.” The court also exempted child pornography from First Amendment protections in order to eliminate the market for this kind of material. It emphasizes the necessity of this exemption as a way to destroy the economic motive for the creation of child pornography.
Sexting and adolescent autopornography are not meant for adults. For that reason it is unlike New York v. Ferber, the court standard for prosecuting child pornography, where Paul Ferber was convicted for selling a video of two young boys masturbating to an undercover police officer. The distinction between this case and that of the Lacey teens is clear. Ferber was decided with the aim of protecting children from exploitation. In the case of the Lacey teens, there is no monetary incentive, no children are harmed by the production of the material (in fact, the producer is also the “victim”), and the material is distributed amongst teenagers.
On the other hand, the danger in relaxing the current (although somewhat absurd) laws against child pornography in regards to teen sexting is twofold. First, were adults in possession of this material, and were a market to arise for it, the necessity of the current law would be clear. Second, teens involved in sexting run into one of the original reasons for destroying child pornography; that its very existence is psychologically damaging to its victim. That is to say that in ten years, the Lacey teen who took a nude photograph of herself in a mirror could suffer severe psychological consequences. While this case (i.e. the willful and intentional distribution of autopornography), is different from a child pornography case in which the existence of the material has the potential to make the victim recall episodes of abuse, the question must be posed whether past choices are equivalent to past abuse. I would argue that the teens engaged in sexting are, as evidenced by the Lacey case, making a decision of questionable judgment from the beginning. By creating the photo and distributing it, they trust the recipient(s) not to reproduce or distribute it. In the somewhat likely event that the photo is redistributed, the humiliation amongst one’s peers really does seem to be punishment enough. Adolescents who want to engage in sexual expression should be responsible for the consequences, but these consequences should certainly not include a felony charge.
A best-case scenario under the current law would result in a new provision that would reduce the sexting charges to a misdemeanor (similar to what was done in the Lacey case). But in an effort to really address sexual expression amongst adolescents, the court would have to validate it as worthwhile expression. Be that the exploration and expression of one’s sexuality or some other value.
As always, a line will have to be drawn regarding the protections allowed to sexting; and perhaps the best way to approach revising the law would be to establish a provision that holds more closely to the harm principle by creating a distinguishing principle between adolescent sexual expression and child pornography.
Philosopher Zechariah Chafee, in his defense of speech in the social interest writes that restrictions of speech must be achieved while preserving the balance between public safety and the “search for truth”. Chafee writes, “the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled”. Though Chafee is most passionate about protecting political speech and “worthwhile” speech that serves the public interest, he’s less apt to protect speech that threatens “the social interest in order and morality.” Adolescent expression, especially expression of sexuality, which can be thought of as one of the most basic and necessary human expressions surely seems like worthwhile speech. By applying Chaffee’s restraints on speech that endanger safety, I think the court could draft a provision that protects adolescent sexual expression by differentiating it from child pornography, because, while they appear to be the same according to the law as written in Ferber, these are really two very different kinds of expression that call for very different legal repercussions.
Monday, February 8, 2010
Balancing Protection and Expression: Libel
The libel laws of Canada and the United States provide a unique glimpse into the legal difficulties inherent in reconciling the right to free speech and expression with the protection of one's reputation. After examining both countries' legal precedents surrounding libel, it appears the United States has gone the furthest to bridge the gap between expression and protection.
The new Canadian libel defense, “responsible communication”, gives journalists and members of the press expanded protections against libel and defamation claims. The 2009 ruling shifts the defense from proving the veracity of libelous remarks (a relic of British common law) to a new two-part defense that must prove the “publication is on a matter of public interest”, and that the “publisher was diligent in trying to verify the allegation” in terms of its seriousness, public importance, urgency, “status and reliability” of the source, representation of the plaintiff’s side, the justifiable inclusion of the statement, and the public interest in the statement itself apart from its truth.
The “responsible communication” defense arose from the Grant v. Torstar decision which famously asserts, “In the modern context, it is argued, the traditional rule has a chilling effect that unjustifiably limits reporting facts, and strikes a balance too heavily weighted in favour [sic] of protection of reputation. While the law should provide redress for baseless attacks on reputation, defamation lawsuits, real or threatened, should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.” Grant v. Torstar was also decided in response to the libel laws in other countries that “give more protection to the press”. This ruling recognizes the difficulty in reconciling constitutional values and the protection of “individuals’ reputations” but, just as in the United States where state laws are often amended to retain constitutional fidelity, the Canadian common law concerning libel was seen to be at odds with the national Charter and the constitutional rights designated therein.
In Quan v. Cusson, the Supreme Court of Canada granted an appeal based on the Grant v. Torstar “responsible communication” decision. At the initial trial, the jury was asked to rule on the truth of each written statement in the libelous article. It dissected each claim in the article and awarded the plaintiff compensation for “general damages” but “found that there was no ‘actual malice’ on the part of any of the defendants” and did not award any “special, aggravated or punitive damages”. In Quan v. Cusson, instead of requiring the defense to prove the accuracy of libelous claims (as was done in the original trial), the Supreme Court of Canada granted an appeal based on the precedent set in Grant v. Torstar, stating, “the defendants’ liability hinges on whether they were diligent in trying to verify the allegations prior to publication”—not in the truth or falsity of the libelous claims on a statement-by-statement basis.
In returning to the jury’s refusal to award damages based on "actual malice" in the initial Quan v. Cusson trial, we are encouraged to examine the protections offered by the United States’ libel precedents.
In New York Times Co. v. Sullivan , a police commissioner sued the New York Times Co. for publishing an advertisement that the commissioner claimed was libelous towards him. The advertisement did not mention the commissioner by name or single him out as an individual. With this in mind, and despite some factual errors in the published advertisement, the Supreme Court decided “the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”
In the United States, after the New York Times Co. v. Sullivan case, the burden of proof that common law places on the defendant was thenceforth determined to rest on the plaintiff. Instead of requiring the defendant to prove the truth of their statements, the plaintiff would now be responsible for proving the defendant harbored actual malice or was negligent in verifying information.
The Gertz v. Welch case served to clarify the New York Times Co. v. Sullivan decision by extending more protection against libel to private citizens than to public officials and public figures, The court ruled that because private citizens, “characteristically have less effective opportunities for rebuttal,” the New York Times Co. v. Sullivan defense is available to publishers and the media only when the libel accusation applies to public officials and public citizens.
The Supreme Court overturned the original decision because the defendant, Elmer Geetz, “plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.” The court decided that defamatory trials would be decided with regards to the individual as a matter of public interest (i.e. the aforementioned public officials and public citizens) as opposed to considering the issue itself a matter of public interest.
The United States’ libel laws have arrived at the most just balance of freedom of speech and protection of personal reputation. By implicitly incorporating the Canadian standard of “responsible communication” in that was established by Grant v. Torstar in New York Times Co. v. Sullivan, which gives fair protection to publishers and broadcasters; and extending further protections to individuals with the Geertz v. Welsh ruling, the United States has developed libel and defamation protections that best adhere to the spirit of free speech and expression.
The United States’ approach to libel conserves the constitutional right to free speech while also protecting individuals. They incorporate the right to freedom of expression laid out in Article 18 of the Universal Declaration of Human Rights concerning freedom of expression and the protections of Article 12 concerning attacks upon honor and reputation. In requiring “actual malice” and granting different public and private citizens’ rights in regards to libel protection, the United States takes a step to reconcile John Stuart Mill’s "marketplace of ideas" approach to free speech that argues that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered” in the interest of promoting truth, with Mill’s claim that, “The liberty of the individual must be thus far limited; he must not make himself a nuisance”—which limits the individual with malicious intent. These balances make the United States’ libel laws the most just in terms of their promotion and limitation of free speech.
The new Canadian libel defense, “responsible communication”, gives journalists and members of the press expanded protections against libel and defamation claims. The 2009 ruling shifts the defense from proving the veracity of libelous remarks (a relic of British common law) to a new two-part defense that must prove the “publication is on a matter of public interest”, and that the “publisher was diligent in trying to verify the allegation” in terms of its seriousness, public importance, urgency, “status and reliability” of the source, representation of the plaintiff’s side, the justifiable inclusion of the statement, and the public interest in the statement itself apart from its truth.
The “responsible communication” defense arose from the Grant v. Torstar decision which famously asserts, “In the modern context, it is argued, the traditional rule has a chilling effect that unjustifiably limits reporting facts, and strikes a balance too heavily weighted in favour [sic] of protection of reputation. While the law should provide redress for baseless attacks on reputation, defamation lawsuits, real or threatened, should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.” Grant v. Torstar was also decided in response to the libel laws in other countries that “give more protection to the press”. This ruling recognizes the difficulty in reconciling constitutional values and the protection of “individuals’ reputations” but, just as in the United States where state laws are often amended to retain constitutional fidelity, the Canadian common law concerning libel was seen to be at odds with the national Charter and the constitutional rights designated therein.
In Quan v. Cusson, the Supreme Court of Canada granted an appeal based on the Grant v. Torstar “responsible communication” decision. At the initial trial, the jury was asked to rule on the truth of each written statement in the libelous article. It dissected each claim in the article and awarded the plaintiff compensation for “general damages” but “found that there was no ‘actual malice’ on the part of any of the defendants” and did not award any “special, aggravated or punitive damages”. In Quan v. Cusson, instead of requiring the defense to prove the accuracy of libelous claims (as was done in the original trial), the Supreme Court of Canada granted an appeal based on the precedent set in Grant v. Torstar, stating, “the defendants’ liability hinges on whether they were diligent in trying to verify the allegations prior to publication”—not in the truth or falsity of the libelous claims on a statement-by-statement basis.
In returning to the jury’s refusal to award damages based on "actual malice" in the initial Quan v. Cusson trial, we are encouraged to examine the protections offered by the United States’ libel precedents.
In New York Times Co. v. Sullivan , a police commissioner sued the New York Times Co. for publishing an advertisement that the commissioner claimed was libelous towards him. The advertisement did not mention the commissioner by name or single him out as an individual. With this in mind, and despite some factual errors in the published advertisement, the Supreme Court decided “the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”
In the United States, after the New York Times Co. v. Sullivan case, the burden of proof that common law places on the defendant was thenceforth determined to rest on the plaintiff. Instead of requiring the defendant to prove the truth of their statements, the plaintiff would now be responsible for proving the defendant harbored actual malice or was negligent in verifying information.
The Gertz v. Welch case served to clarify the New York Times Co. v. Sullivan decision by extending more protection against libel to private citizens than to public officials and public figures, The court ruled that because private citizens, “characteristically have less effective opportunities for rebuttal,” the New York Times Co. v. Sullivan defense is available to publishers and the media only when the libel accusation applies to public officials and public citizens.
The Supreme Court overturned the original decision because the defendant, Elmer Geetz, “plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.” The court decided that defamatory trials would be decided with regards to the individual as a matter of public interest (i.e. the aforementioned public officials and public citizens) as opposed to considering the issue itself a matter of public interest.
The United States’ libel laws have arrived at the most just balance of freedom of speech and protection of personal reputation. By implicitly incorporating the Canadian standard of “responsible communication” in that was established by Grant v. Torstar in New York Times Co. v. Sullivan, which gives fair protection to publishers and broadcasters; and extending further protections to individuals with the Geertz v. Welsh ruling, the United States has developed libel and defamation protections that best adhere to the spirit of free speech and expression.
The United States’ approach to libel conserves the constitutional right to free speech while also protecting individuals. They incorporate the right to freedom of expression laid out in Article 18 of the Universal Declaration of Human Rights concerning freedom of expression and the protections of Article 12 concerning attacks upon honor and reputation. In requiring “actual malice” and granting different public and private citizens’ rights in regards to libel protection, the United States takes a step to reconcile John Stuart Mill’s "marketplace of ideas" approach to free speech that argues that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered” in the interest of promoting truth, with Mill’s claim that, “The liberty of the individual must be thus far limited; he must not make himself a nuisance”—which limits the individual with malicious intent. These balances make the United States’ libel laws the most just in terms of their promotion and limitation of free speech.
Monday, January 25, 2010
Protecting Speech, Promoting Democracy
The Humanitarian Law Project case concerns the freedom of individuals to teach and advocate international law and promote the use of nonviolent conflict resolution, peace, and human rights to groups designated as terrorist organizations by the United States government. Individuals representing human rights organizations that had been working with The Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)—both considered terrorist organizations—prior to the enactment of 18 U.S.C. § 2339B are challenging the constitutionality of the law which prohibits “training”, offering “expert advice or assistance,” “service,” and “personnel” to terrorist organizations. This crime is punishable by fifteen years in prison.
The plaintiffs are challenging the above provisions of the law, arguing that the prohibitions are far too vague and that they criminalize speech based on content. In determining this case, the Supreme Court must decide if pure speech is “unconstitutionally prohibited” by 18 U.S.C. § 2339B.
Even after considering the protections that this law intends, including the protection of the United States and its citizens and the withholding of material, personnel, and intellectual resources from terrorist organizations, I find that its restriction on free speech is unconstitutional. 18 U.S.C. § 2339B wrongly criminalizes pure speech that is of a"purely expressive nature" and vital to a "functional democracy" without aim of profit.
It is exactly this type of speech that philosopher Alexander Meiklejohn, argues is vital to promoting democracy and the free expression of ideas. Meiklejohn emphasizes that the freedom of public discussion is “beyond the reach of legislation limitiation, beyond even the due process of law. With regard to them, Congress has no negative powers whatever.” (Tedford, 437). The aims of those involved with the Humanitarian Law Project are what Meiklejohn’s philosophy would designate as the promotion of “general welfare”.
By applying strict scrutiny to the case, the government is responsible for providing substantial reasons for regulating speech. They fail to do this. “Plaintiffs maintain that, as applied to their proposed speech, the challenged provisions are intolerably vague, discriminate on the basis of content, and penalize pure speech and association. The government has a compelling interest in combating terrorism, but as this Court has insisted, it must pursue that interest with respect for fundamental constitutional constraints. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229 (2008); Hamdi v. Rumsfeld, 542 U.S. 507 (2004). This statute’s sweeping criminalization of human rights advocacy and other speech fails that test.“
The individuals and humanitarian organization want to continue teaching and advocating the use of international law and promoting conflict resolution, human rights, and peace which they are currently prohibited from doing according to 18 U.S.C 2339B. As previously mentioned, this statute stipulates that any communication of ideas to, with, or for an organization designated as terrorist by the government is a crime punishable by fifteen years in prison for providing “training”, “expert advice or assistance”, “service” or “personnel”. The prohibition of associating with terrorist groups is too broad and advances only government aims with no regard to the spectrum of associations that may occur. By focusing on and enlarging only the worst possible outcomes of free speech, the government is effectively prohibiting even communication that has the potential to leaven hostile relations. The government's position is found lacking when peered at through the lens of strict scrutiny. There is no compelling reason to criminalize such a broad variety of speech and expression.
This is confirmed by the opinion of the court. “The statute at issue employs ill-defined or undefined terms to criminalize pure speech. It proscribes speech by express reference to its content. It is triggered by the Secretary of State’s selective designation of “terrorist organizations,” based on criteria that are in part explicitly political. And as interpreted by the government, it imposes criminal liability on speech and association without any showing that the speaker intended to incite or promote terrorist activity in any way. Indeed, on the government’s reading, the statute makes speech a crime even if the speaker succeeds in reducing resort to violence by encouraging peaceful resolution of conflict."
It is important to consider that pure speech is given the highest allotted protection by the US Constitution. Because of this, strict scrutiny must be applied to this case. The government must provide a compelling reason for the speech to be prohibited. Despite the triggering of strict scrutiny due to the issue of pure speech, the inexplicit wording of 18 U.S.C. § 2339B would make this law vulnerable even to intermediate scrutiny according to the court since it prohibits “vastly more speech than is necessary to serve any legitimate interest in national security.”
Because of this case’s association with terrorist groups, it is tempting for those opposing the unconstitutionality of 18 U.S.C. § 2339B to draw a comparison with Dennis v. United States, which prohibits association or conspiracy with a group that advocates the overthrow of the government of the United States. The precedent established by Dennis v. United States and the application of the clear and present danger test suggested by that case, are found lacking concerning the Humanitarian Law Project. Further, the constitutional guarantees of free speech and freedom to assemble were solidified in Brandenburg v. Ohio and explicitly noted by the court when considering the Humanitarian Law Project, “Even where speech directly advocates criminal conduct, the Court has held that it may not be penalized unless it is in fact intended and likely to produce 'imminent lawless action.' Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Hess v.Indiana, 414 U.S. at 108-09."
I’ve no choice to agree with the Supreme Court ruling in its conclusion that “18 U.S.C. § 2339B(a)(1)’s criminal prohibitions on the provision of “training,” “expert advice or assistance,” “service,” and “personnel” to government-designated “terrorist organizations” are unconstitutional as applied to pure speech that promotes only lawful, nonviolent activities.” In the interests of promoting democracy, blanket prohibitions such as this can only negatively impact the types of political conversations and promotion of general welfare that Meiklejohn argues are the most vital elements of freedom of expression and unconditionally privileged (Tedford, 436).
The plaintiffs are challenging the above provisions of the law, arguing that the prohibitions are far too vague and that they criminalize speech based on content. In determining this case, the Supreme Court must decide if pure speech is “unconstitutionally prohibited” by 18 U.S.C. § 2339B.
Even after considering the protections that this law intends, including the protection of the United States and its citizens and the withholding of material, personnel, and intellectual resources from terrorist organizations, I find that its restriction on free speech is unconstitutional. 18 U.S.C. § 2339B wrongly criminalizes pure speech that is of a"purely expressive nature" and vital to a "functional democracy" without aim of profit.
It is exactly this type of speech that philosopher Alexander Meiklejohn, argues is vital to promoting democracy and the free expression of ideas. Meiklejohn emphasizes that the freedom of public discussion is “beyond the reach of legislation limitiation, beyond even the due process of law. With regard to them, Congress has no negative powers whatever.” (Tedford, 437). The aims of those involved with the Humanitarian Law Project are what Meiklejohn’s philosophy would designate as the promotion of “general welfare”.
By applying strict scrutiny to the case, the government is responsible for providing substantial reasons for regulating speech. They fail to do this. “Plaintiffs maintain that, as applied to their proposed speech, the challenged provisions are intolerably vague, discriminate on the basis of content, and penalize pure speech and association. The government has a compelling interest in combating terrorism, but as this Court has insisted, it must pursue that interest with respect for fundamental constitutional constraints. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229 (2008); Hamdi v. Rumsfeld, 542 U.S. 507 (2004). This statute’s sweeping criminalization of human rights advocacy and other speech fails that test.“
The individuals and humanitarian organization want to continue teaching and advocating the use of international law and promoting conflict resolution, human rights, and peace which they are currently prohibited from doing according to 18 U.S.C 2339B. As previously mentioned, this statute stipulates that any communication of ideas to, with, or for an organization designated as terrorist by the government is a crime punishable by fifteen years in prison for providing “training”, “expert advice or assistance”, “service” or “personnel”. The prohibition of associating with terrorist groups is too broad and advances only government aims with no regard to the spectrum of associations that may occur. By focusing on and enlarging only the worst possible outcomes of free speech, the government is effectively prohibiting even communication that has the potential to leaven hostile relations. The government's position is found lacking when peered at through the lens of strict scrutiny. There is no compelling reason to criminalize such a broad variety of speech and expression.
This is confirmed by the opinion of the court. “The statute at issue employs ill-defined or undefined terms to criminalize pure speech. It proscribes speech by express reference to its content. It is triggered by the Secretary of State’s selective designation of “terrorist organizations,” based on criteria that are in part explicitly political. And as interpreted by the government, it imposes criminal liability on speech and association without any showing that the speaker intended to incite or promote terrorist activity in any way. Indeed, on the government’s reading, the statute makes speech a crime even if the speaker succeeds in reducing resort to violence by encouraging peaceful resolution of conflict."
It is important to consider that pure speech is given the highest allotted protection by the US Constitution. Because of this, strict scrutiny must be applied to this case. The government must provide a compelling reason for the speech to be prohibited. Despite the triggering of strict scrutiny due to the issue of pure speech, the inexplicit wording of 18 U.S.C. § 2339B would make this law vulnerable even to intermediate scrutiny according to the court since it prohibits “vastly more speech than is necessary to serve any legitimate interest in national security.”
Because of this case’s association with terrorist groups, it is tempting for those opposing the unconstitutionality of 18 U.S.C. § 2339B to draw a comparison with Dennis v. United States, which prohibits association or conspiracy with a group that advocates the overthrow of the government of the United States. The precedent established by Dennis v. United States and the application of the clear and present danger test suggested by that case, are found lacking concerning the Humanitarian Law Project. Further, the constitutional guarantees of free speech and freedom to assemble were solidified in Brandenburg v. Ohio and explicitly noted by the court when considering the Humanitarian Law Project, “Even where speech directly advocates criminal conduct, the Court has held that it may not be penalized unless it is in fact intended and likely to produce 'imminent lawless action.' Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Hess v.Indiana, 414 U.S. at 108-09."
I’ve no choice to agree with the Supreme Court ruling in its conclusion that “18 U.S.C. § 2339B(a)(1)’s criminal prohibitions on the provision of “training,” “expert advice or assistance,” “service,” and “personnel” to government-designated “terrorist organizations” are unconstitutional as applied to pure speech that promotes only lawful, nonviolent activities.” In the interests of promoting democracy, blanket prohibitions such as this can only negatively impact the types of political conversations and promotion of general welfare that Meiklejohn argues are the most vital elements of freedom of expression and unconditionally privileged (Tedford, 436).
Subscribe to:
Posts (Atom)
