Synthesis

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.