Analysis #4: Animal and Child Rights

It is ethically, and morally, wrong to intentionally harm those who are vulnerable or in a weakened state of being. I would not expect to see a video of two elderly persons in a fight for the death for a much-needed shot of insulin. I would not expect to see a video of a woman wearing high heels stepping on a baby. Yet there are these “crush videos” where women in high heels step on animals, and videos of cockfights that are essentially death matches. I feel that seeking monetary compensation for displaying any of the above is deplorable. Supreme Court Justice Samuel Alito and I seem to be in partial agreement as he asks, “What about people who like to see human sacrifices? …Live, pay-per-view, you know, on the human sacrifice channel, they have a point of view they want to express. That’s okay?” I personally see a clear connection to New York v Ferber and the ruling that outlawed the depiction of child pornography. Yet the Circuit Court refused to accept the argument that the “depiction of animal cruelty was analogous to the depiction of child pornography”. It seems as though the court feels that feelings of shame is what is necessary to protect, which is a part of the current legislation to ban child pornography and protect children from feeling shame or suffering other psychological trauma. The current legislation to ban depictions of animal cruelty, under U.S.C. § 48 animal cruelty is defined as:

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

The court tried to argue that unlike children, animals would not be harmed by having their images out in the marketplace. I do not agree with this logic because I feel once something is displayed and demonstrated as acceptable, others will also feel it is acceptable and continue the bad behavior. Considering the description above, I think it is clear that animals were harmed if they were maimed, mutilated, or tortured. This is the only place where the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime. The depiction of it not only psychologically harms the child, but also may encourage others to produce similar videos. The Circuit Court noted this in their discussion, stating the “Supreme Court ‘last declared an entire category of speech unprotected’ by the Amendment in New York v. Ferber, involving child pornography”. One of the main explanations of the 1999 law established by US v Stevens is that is holds “no serious societal value.” In considering the “slippery slope” such depictions may have on society I choose to apply the philosophy of John Stuart Mill. Depicting the harm done to animals does not have any established legal grounds prior to this case. However, in applying Mill the argument is made that individuals have the “right to act as (they) want, so long as these actions do not harm others”. In applying Mills’ principle to the animal case, I find that I have the same logical reasoning as Justice Alito. I do believe that the decision in United States v. Stevens should be upheld. I believe that there is enough evidence of damage that can be done to animals as well as society by allowing the production and distribution of these videos. The depiction of violence towards animals should be criminalized because I believe it has the potential to cause harm and incite immediate harm towards animals. Although I strongly feel that it is wrong to subject vulnerable beings (animals, babies, the elderly) for a sick form of entertainment, I recognize that upholding US v Stevens restricts the right to free speech. Moreover, in considering that Stevens did not produce the work in question, I would not sentence him to jail. A more appropriate punishment would be to fine him for the profit he made selling the videos, and a requirement for community service with the Humane Society. I would still uphold the law, as I believe there is enough evidence to suggest that allowing depictions of such cruelty in the United States (where it is illegal) will send the wrong message. Cases that fall under this precedent however would need to be evaluated on a case-by-case basis, unlike the sweeping umbrella of NY v Ferber. This is because as it stands now, the law is overly broad. Even though Stevens may not hold the same social morals as everyone else, it was not him committing the actions and the videos were from a country that has no laws prohibiting such cruelty.

In considering these things, I recognize that I waiver a bit in wanting freedom of speech for all. With certain provisions, both US v Stevens and New York v Ferber would be good laws to protect the rights of those who may not be able to fight for themselves. Although they are overly broad, I still believe that without them the ability to live without fear, a right that animals (and babies) should have, is compromised. As I will not condone the distribution of a “crush babies” video, I also will not condone the distribution of “crush videos” and would uphold the law while granting Stevens a very different sentence than what he received.

Synthesis

At the beginning of this course, I defined what I felt was Communication Justice as “the right for all persons to express themselves and their opinions (written, orally, or visually) without fear of persecution in order to promote equality (and in doing so, justice) in society”. I still stand by this definition and believe that the language I used has allowed for the occasional fluctuation over what speech is protected and what speech is punished. Communication Justice does not translate directly to “free speech” rights; rather I feel that free speech is both a motivator and a result of this. The clause “in order to promote equality” is the primary basis for freedom of speech. Our ability to express our opinions, even if controversial, must exist so that we all have a voice in society. When something is expressed, however, that compromises others’ rights to this same equality; restrictions should be in place to protect them. This is why I argued that hate speech does not deserve the same amount of protection. The case that first raised this issue was concerning the Westboro Baptist Church. The WBC, as I discussed in that post, is entirely protected in their speech and actions. I felt that some of their messages were explicitly hateful, and argued that they hindered social progress and the ability of historically marginalized groups to express themselves. Because I feel that their messages hurt society as a whole, and no US case or law would prosecute them, I looked to Germany and their criminal code. The WBC would be prosecutable under Agitation of the People (section 130) which makes it illegal to “publicly incite hatred against parts of the population or … to insult, maliciously slur or defame them in a manner violating their (constitutionally protected) human dignity.” I believe that the US would do well adopting a similar law to ensure that all people can maintain their dignity and –equally- maintain the right to free speech.

In reviewing my previous postings, I also find that my initial citations of the Universal Declaration of Human Rights are key proponents of my reasoning even if not explicitly stated. I still believe that everyone has the right to express their opinion, regardless of location or if it is controversial. I am not an absolutist, as in both my second blog and my third blog I argue that restrictions need to be in place. This is more true in the discussion over Westboro. With the FCC, I argued that they have too many restrictions and that possibly the only ones needed are during the times that material is specifically intended toward children. When re-reading this, I think it is unlikely that the producers of children’s content would put any offensive material up, so rather than restrictions I think that the current ratings systems (GA, G, PG, etc) should do. I believe that no content should be restricted, but that audiences should be informed of what the material contains before choosing to watch the program. I also noticed that in response to my decision to overturn FCC v Pacifica and FCC v Fox, a question was asked, which was if I really expected parents to constantly monitor the programs their children are viewing, and to explain why questionable content should not be used if it comes up. I cite Justice Harlan in his ruling of Cohen v. California “we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” I absolutely feel that it is the parents, not the governments, responsibility to monitor their children. This also leads me to my firm belief in UDHR’s Article 19, that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

I would like to say that I am a sole advocate for strict scrutiny, and that government must prove it has a compelling reason to regulate or punish the speech. However, I introduced intermediate scrutiny where only substantial reason was necessary in several responses and when I felt it would allow me (acting as a justice) to “win” my case (Westboro). To an extent, this carries over into the various philosophers we have covered – at various times I applied Meiklejohn, Mill, Haiman, Emerson, or Chafee. Although it was not always clear in my posts, possibly even less so with responses, I feel like my philosophy most closely aligns with Mill. John Stuart Mill protects nearly all speech, and proposes limits only if harm seems imminent. This requires that the only power to restrict speech happens if it is done to prevent harm to others. He further distinguishes harm as legitimate and illegitimate. When speech causes a direct and clear violation of rights, then it can be limited, making the restriction legitimate. In his corn dealer example, he says it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to gather an angry mob who feels the same way in front of the corn dealer’s house. This may cause harm to the corn dealer and this form of expression is likely to result in an outburst or other type of instigation. Mill, although he would not be enough to restrict Westboro, paints a similar picture to what I see happening. In protesting the funerals of soldiers, in visible areas close to the funeral itself, I feel that WBC is very much like the starving mob. It is only a matter of time until the corn dealer feels threatened or angered and goes to talk to the mob, just as if it is only a matter of time until a griever speaks out against this sort of protest and emotions are high. I like the way Mill phrases this limitation to say the “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” A key distinction for me is that I strongly feel the speech must be leading to or inciting harm to warrant restrictions. Any form of speech that can be proven harmful should not be protected. This requires the “clear and present danger” test in order to demonstrate the material can actually cause harm.

I also still believe what I cited in my first post concerning blasphemous speech in Afghanistan, and argue that free speech and free religion go hand in hand. The ruling in Burstyn v Wilson says, “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” Much of my personal beliefs stem for the first part of that, when it says it is not the business of government to suppress real or imagined attacks. However, the potential that something will incite or cause harm does require the government to intervene. In my final post, I discussed how the depiction of animal violence does propagate the harming of innocent beings. Therefore, the depiction of violence towards animals should be criminalized because I believe it has the potential to cause harm and incite immediate harm towards animals. For this same reason, I would criminalize child porn that fits the definitions under the proposed revisions I gave in my responses. This means that if the speech harms, even if it harms a child’s innocence or sense of worth (as with the pornography issue), or harms another being, some form of restrictive action needs to be taken.

Analysis #3: A Fleeting Review of Expletives and the FCC

In April 2009, The Supreme Court ruled in Federal Communications Commission v. Fox Television Stations that the Federal Communications Commission (FCC) is allowed to regulate the use of fleeting expletives on broadcast television. A fleeting expletive entails any comment or exclamation made that contains an expletive and is broadcast on TV or Radio. This restricts certain words, such as “fuck” and “shit”, from being aired as they have a “sexual or excretory connotation”. Such words cannot be aired between 6 a.m. and 10 p.m. when it is reasonable to assume that children will be in the audience, and “children should be shielded from the “first blow” of such presumably harmful language”. This case echoes the ruling of the 1978 FCC v Pacifica, when the court determined that it is indecent to broadcast stand-up comedian George Carlin’s “Seven Dirty Words” in the afternoon because “children are undoubtedly in the audience”. This precedent forbid the use of any “obscene, indecent, or profane language by means of radio communications” and found Carlin to be using certain words that “depicted sexual and excretory activities” in a particularly offensive manner.

These cases demonstrate that the Supreme Court has ruled in favor of prohibiting fleeting expletives on broadcast radio and television, in spite of previously allowing for First Amendment Protection. The main tie I see in both of these cases is that if there is a chance a child is present in the audience when this language is used, it no longer deserves First Amendment Protection. While I do agree that children should be shielded from this language, I do not feel the FCC has a place to regulate it to this extent. Our government is not responsible for controlling what speech is suitable for public ears, because it should be a government “of the people, by the people, for the people”. This regulation must come from the parents. No matter how many restrictions the FCC places, all language prohibited by broadcast will still be expressed in daily lives. Parents cannot just protect their children from this language. They also need to address it when it comes up so they can teach their children what is appropriate and inappropriate. Two clips (optional links attached) come to mind from the TV show Family Guy when a lead character faces FCC regulations after starting his own station. I believe these examples show how ridiculous censorship can get and that interchanging words to express an idea still does not change the meaning or make it less indecent.

In FCC v Fox and FCC v Pacifica, the Supreme Court did not protect the First Amendment when it comes to broadcast TV or radio. This raises the question “Should the same levels of protection apply to ALL media – print, broadcast, movies, cable, online sites, webcams/chat – or should the levels of protection vary according to medium?”. While reading the justifications behind not protecting expletives on TV or radio, I do agree that varying levels of First Amendment Protection is needed depending on the medium and content. For example, the Disney Channel should not be able to suddenly switch and put cartoons similar to Family Guy alongside their other cartoons. They have a trusted reputation amongst families and children and deciding to exercise artistic creativity in a medium where children are definitely the audience is irresponsible. Similarly, I would assign less protection when it comes to online sites specific for children (again, Disney or something along those lines) because that is the sole audience. Maximum First Amendment Protection should be given to shows and mediums geared for mature audiences, whether it is over broadcast or cable. Even though I disagree with the Supreme Court decision to overturn the lower court ruling, which found in favor of Fox Television, I still believe some of their intentions to regulate expression are reasonable. If they had strict prohibitions on expletives or obscene language for the whole time block of ABC’s Saturday Morning Cartoons, I would support that ruling because these are geared for children. However, it is not reasonable to regulate ALL content that airs during a child’s potentially awake hours from 6 a.m. to 10 p.m. I would also add that movies that use expletives out of artistic considerations receive full protection. The Free Expression Policy Project emphasizes this, saying that some broadcasts such as the “expletive-laden” war film “Saving Private Ryan” are not indecent and requires the expletives out of artistic necessity.

This connects us to the question of whether adults have the same rights to create such speech for private use, distribute such speech for public consumption and receive such speech or if varying levels of First Amendment Protection also need to be applied. Because of the specific that this creation, distribution, and consumption is by adults for adults, I absolutely believe the same rights guaranteed by the First Amendment should be applied. Even with “fleeting expletive indecency”, no prohibitions should be in place as it goes against creative freedom. I agree with Fox Television and the concurring opinion of ABC, NBC, and CBS in that the FCC’s evaluation of each broadcast is limiting artistic merit.

Fleeting expletives, like what occurred at the Billboard Music Award and the Golden Globes, are usually too quick to prevent. The decision to ban fleeting expletives by the FCC are determined on three principal factors, if:

1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities;
or
2) the material dwells on or repeats at length descriptions of sexual or excretory organs or activities;
or
3) the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.

These are broad definitions in comparison to unprotected Political Speech, which is only called into question if the speech matches certain requirements under the harm or offense theories. Considering the question “Should words, images and sounds that stimulate erotic or sexual thoughts be granted the same protection as political speech?” and the FCC’s principals above, I believe that they should be granted the same protection as political speech for the sake of upholding the First Amendment, our freedom of expression, and promoting democracy. In the fleeting expletives case, the restrictions only passed 5 to 4. Furthermore, Justice Antonin Scalia did not address the First Amendment constitutional issue, which would question the FCC's ability to regulate such speech. Returning to FCC v Pacifica, the FCC seemed more concerned over the medium and time of day that Carlin’s “Filthy Words” were broadcast and the indecency of the language. Even with the ruling, the court specifically noted that the FCC was not sanctioning the "occasional expletive". Yet in FCC v Fox, the ruling took away more First Amendment Protections without explanation as to why they increased restrictions over expletives. Both of these cases do not allow free expression, particularly the case from last year. In an attempt to remedy these rulings, I would send the case to the Federal Appeals Court, overturn the decision in FCC v Fox, and overturn the decision in FCC v Pacifica because it is indecent parenting to subject your child to crude adult humor.

Analysis #2: The First Amendment and Offensive Speech

The Westboro Church (WBC) is one of the most vocal anti-gay groups in the United States. On a regular basis, they protest homosexuality by citing a variety of quotes from the bible. They frequently protest funerals of fallen soldiers and of homosexuals. The WBC believes that they do not deserve to be honored or mourned, and tell grievers that “God Hates Your Tears” Their protests, where they claim that homosexuals and those who are not protesting homosexuality will go to hell, have drawn criticism from many. The WBC firmly argue that “God Hates Fags”, as does the website they run.

The actions of the WBC have incensed and offended many, myself included. In Chaplinsky v. New Hampshire, a precedent was established that “in certain circumstances words may be regarded as fighting words because men will reasonably know that they will result in violence and hence, those words are outside of the First Amendment” (11:00 in clip). If the WBC were found to use “fighting words”, then a criminal conviction would not violate their free First Amendment guarantees. However, the definitions of what constitutes fighting words make it difficult to charge the WBC. The offense theory is difficult to attribute to the group because of their protected right to vocalize their beliefs and communicate democratic dialogue to society. The WBC is certainly protected in its’ right to protest funerals following Alexander Meiklejohn's philosophy of free speech. Meiklejohn asserts there must be no constraints on the free flow of information and ideas. The WBC is part of the democratic process and therefore has the right to express their opinions. John Stuart Mill’s philosophy would also serve the interests of the WBC. Mill would argue that the suppression of free speech hinders intellectual and social progress. In determining if sexually marginalized groups should be protected from offensive speech, his philosophy would not favor their protection. Mill also believed that merely offending the moral sensitivities of others do not count as harmful speech. I would not apply his philosophy in this particular case because I feel that the message of the WBC actually hinders intellectual and social progress.

Nonetheless, to prosecute them I feel I have to rely on Feinberg’s offense theory. The WBC is using hate speech targeted to individuals, which may cause “profound and personal offense.” Because of their presence and constant picketing, it is even more difficult for those offended by the group to shrug it off. The discomfort that is caused by the WBC’s protected speech may allow for prosecution in a court. To increase my chances of winning against the WBC’s messages, I would apply intermediate scrutiny, which typically is used by the Supreme Court concerning cases with groups that have been historically disadvantaged. While oppression of sexual orientation may not have as much historical backing as a case with racial oppression, I believe the same principles can be applied. In using intermediate scrutiny, I believe it could be reasoned that there is a greater than ordinary justification to pass laws prohibiting certain speech by the Westboro Baptist Church following Feinberg’s offense theory and the Chaplinsky case. Furthermore, sexual orientation may succeed under intermediate scrutiny in the way that the courts must examine the intricacies surrounding the stereotype and the word choice of "fags" that the WBC utilizes.

In doing all this, the issue I have as a lawyer is whether it will be upheld as constitutionally protected. In seeking to limit WBC's entitled free speech, I must apply a philosophy or precedent that would allow me to do so. Currently, it is difficult to determine if we have the right to limit the WBC's speech and how we would enforce that. In the previous cases brought upon them, they have been acquitted of nearly all charges. While it frustrates me, I must logically believe that I too, may fail in my attempt to protect sexually marginalized groups from the offensive speech of the WBC.

Analysis #1: Blasphemous Speech in Afghanistan

Communication Justice is something that requires us to understand each term separately as well as what they mean once combined. I would define Communication as the act of expression, whether that be written, oral, or visual. I believe Justice to mean upholding what is right and fair in society through the application of law. Based on my own interpretation, Communication Justice is the right for all persons to express themselves and their opinions (written, orally, or visually) without fear of persecution in order to promote equality (and in doing so, justice) in society. I believe this to be true on a global scale as outlined in the Universal Declaration of Human Rights (UDHR) regardless of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (UDHR Article 2).

In regards to the case of Perwiz Kambakhsh, he was denied his right to freedom of expression. He was unjustly accused, unjustly tried, and unjustly convicted of “propagating blasphemous literature”. Upon investigation, it is clear that Kambakhsh is well within his granted Universal Human Rights (Articles 2, 3 and 19) when he chose to repeat the insults against Islam and the conditions of the women there whilst incorporating his own commentary on the issues at hand and sharing all of this information with the global internet community.

Afghanistan has ratified the UDHR and has thereby expressed a commitment to freedom of expression of Afghanis and all other rights detailed in the Declaration. Kambakhsh was arrested and detained after releasing an article that supported women’s rights not given by the Qur’an. In the case of Burstyn v Wilson, the Supreme Court ruled that “from the standpoint of freedom of speech and the press, a state has no legitimate interest in protecting any or all religions from views distasteful to them” Kambakhsh’s decision to openly criticize treatment of women in the Qur’an would clearly be considered distasteful by devout Muslims. However, Afghanistan as the state in question would have “no legitimate interests in protecting (Muslims)” from Kambakhsh’s “distasteful” speech. Burstyn v Wilson is also important here because of the ruling, “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” His speech appeared in an online publication, but even if he was campaigning in the streets, I believe that he has the right to say what he wants regarding the unfair treatment of others. I find it sad that he was targeted so negatively in his attempt to point out the discrimination that happens against Islamic women. His rights to express his opinion were denied. Although current news sources only hint at what his article and commentary was on, even if his speech was blasphemous or sacrilegious both the UDHR and the US Supreme Court (via their ruling of Burstyn v Wilson) would uphold his right to speech. It sounds as though he addressed the inequality that exists under the Qur’an concerning the rights of men and women in an attempt to bring awareness to this inequality.

I feel he was well within his rights to criticize the unfair treatment of others evidently justified in the Qur’an. A religious text is not government sanctioned law in Afghanistan. Even if it were, the adherence to the UDHR would have equal importance in determining the charges and punishment for a case like this. He is within his rights as defined in Article 19 “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” It is also noteworthy that in the US case of Burstyn v Wilson it was ruled that, “a state may not place a prior restraint on the showing of a motion picture film on the basis of a censor's conclusion that it is "sacrilegious”, which violates the First and the Fourteenth Amendment. Although this case concerns motion pictures, it is safe to believe that his article should enjoy the same protections. His desire for social justice and his ability to think critically should be encouraged; he is a student not unlike those of us taking this course at a Jesuit institution. Issues concerning inequality need to be discussed and evaluated if any change or progress is to be made. The social rights movement here in the US did not occur overnight, and many like Kambakhsh (Susan B. Anthony, Rosa Parks, Nelson Mandela) were wrongfully imprisoned and treated in a similar manner. Anthony campaigned for equal rights regardless of sex (much like Kambakhsh) and was imprisoned for voting in a government election like men were permitted to do. Parks was imprisoned for refusing to give up her bus seat to a white passenger due to her belief that whites and blacks were equal. Like Kambakhsh, they were convinced that all citizens were equal regardless of sex or race and were willing to stand up for such convictions. Their determination to speak freely encouraged others that agreed with them to speak up. Change is a process, and the spark lit by Kambakhsh will hopefully spur others to take a risk in speaking out. The global community must also actively participate to ensure that rights are upheld in all cases. From reading the articles, I don’t believe the fight is over and he still needs to be given a fair trial. Pressure must come from those who currently enjoy their freedom of expression in order to get him a fair trial. We are lucky to live somewhere that offers us many protections, even though flaws exist in our system. These protections allow us to enjoy our rights without facing criminal charges. Even with criminal charges, we know we will be tried, the evidence weighed, and that our defense may be strong enough to acquit us. Cases like this, particularly in the 21st century, should not go unnoticed. Communication Justice does not currently exist in Afghanistan as demonstrated in this case, and that needs to change.