Finding a Balance: Creating an International Free Speech Law within National & Cultural Diversity

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Introduction:

The majority of US citizens who grew up in public schools recited the same mantra on a daily basis:

“I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”

As children, we never really understand how powerful these words actually are.  Our pledge claims that our country allows liberty and justice for all of its citizens.  We learn about the history and foundation of our government in school through the Constitution and its Amendments as the main focus.  Though adolescents, we were smart enough to understand the basic concepts of freedom of speech, right to bear arms and so forth.  But, the older I became and the more I was able to comprehend, it seemed as though there were always added exceptions to the rules of free speech.  “In America, we have the freedom of speech BUT…” but what?  I took a defiant role against these exceptions; it didn’t make sense that we allowed certain types of speech but not others.  After completing my senior Communication Law synthesis course, I’ve now realized reasons why so many have tried to prevent groups such as the Westboro Baptist Church or violent video game creator Running With Scissors  from having free speech privileges.  I have come out of this course with a much more informative understanding of why certain types of speech are allowed and some are not.  I have begun to define my personal “philosophy” of free speech in a much less defiant, well thought out manner.  I do not believe that this philosophy is anywhere near a permanent opinion for me; there are even aspects of it that I do not personally agree with but in terms of fair and equal law I must.

 

The United Statesprides itself on its free speech laws; if citizens had more constrained rights, there would not be so much discrepancy among the Supreme Court each year over landmark cases which protect citizens’ right to represent themselves as they please.  Americans, in comparison with much of the rest of the world, have the ability to express themselves freely through a number of public and private mediums.  If the world were to have a singular underlying free speech law, how should we even begin to write it?  The United Statesjudicial system already operates around the Greek-based Aeropagetic origin of law in which each defendant has the right to prove their innocence and it is up to a group of citizen jurors to decide the verdict.  However, the USwas built as “one nation under God” and Christian-based morals constantly interfere with our ability to make decisions.  Other countries, such as Pakistan, hold this Theocentric model to the highest regard within Sharia law as in the case of Asia Bibi’s death sentence for blasphemy against the prophet Mohammad.

 

If we are to write an international law that is accepted around the entire globe, we must omit a dominating Theocentric and moral-based aspect of law as much as possible.  Though I would like to respect other countries’ religious beliefs and ethics that are set into their system of law, there are so many differing religious views that it would be utterly impossible to create a law with a singular dominating moral base line.  This is not to say that I am throwing morals out entirely; there will need to be some sort of moral framework to prevent complete anarchy.  This international free speech law will be more effective if it is Aeropagetic-based with Theocentric components that are concerned with the (mostly physical) harm of others.  I will explore the issue of “harm” in this law later on as it is often a very subjective term.

 

An acceptable (and limiting) Philosophy

Throughout history, a number of free speech philosophers have taken on the task of attempting to delegate what type of speech should be considered punishable and what type is covered by the First Amendment.  It is now up to me to gather aspects of these philosophies that I believe would become an effective foundation for an international free speech law.  Upon examining numerous free speech philosophies and how they differ, I must admit that I cannot come upon one single philosopher that covers all that I feel can represent my opinions of free speech.  I will instead introduce my own hybrid free speech philosophy which is based on Thomas Emerson’s distinguishing of “expression” and “action” along with “problem areas” of speech and John Stuart Mill’s “Harm Principle”.

 

Though I had first planned to base this work on more conservative philosophers such as Zechariah Chafee and his two tier theory, I realized I was only thinking in terms of my personal emotional and ethical reactions to cases and what I thought was acceptable.  Who am I to be the one to say whether someone’s speech is “worthwhile” or worthless”?  All speech should be judged by the same standards, save it cause actual harm to the speech’s receiver(s).  I now come to the decision-making point of how I define harm; do I lean towards strictly physical, or include emotional as well?

 

John Stuart Mills proclaims his support for free speech in his well known work “On Liberty”.  Mills notes that everyone should be allowed “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.”  His views support the right to speak of subjects that may be considered immoral and the “freedom to unite, for any purpose not involving harm to others”.  How then do we define this concept of harm?  Mills explains his Harm Principle with an example of a corn dealer: if the corn dealer causes people to starve by raising prices, it is acceptable for those upset to verbalize and write their opinion.  But, if they were to express themselves by bringing an angry mob to the corn dealer’s home, it would insinuate a threat of violence (harm) and therefore be punishable.  Mills’ Harm Principle, in combination with Emerson’s Expression-Action theory will define an effective underlying philosophy in which to judge free speech.

 

Thomas Emerson’s Expression-Action theory separates the two concepts into the protected speech of expression (which includes beliefs and opinions) and actions which the government has the ability to punish if necessary.  As an advocate of freedom of all personal expression, Emerson found it acceptable for all to say whichever belief or opinion they had through any communication medium whether it is print, spoken word, an art form or symbolic gestures.  However, the line is often blurred between what can be considered action or expression.  In my philosophical guideline for this international law, I will follow Emerson’s conclusions of what categories of speech his four “problem areas” fall into.  Speech labeled “seditious” may be accepted as expression as long as it does not physically prevent movement and “instructions that go beyond advice and persuasion”.  Defamation (in terms of libel), is acceptable if and only if it is for the public’s concern and not for the sake of individual defamation.  Obscenity is acceptable in all art forms and is only punishable if it is forced upon those who were unwilling to experience it for shock value.  The fourth, provocation to anger, is punishable when direct speech provokes some sort of physical altercation with another.  However, if the speech does not follow this guideline, Emerson makes note of the receiver’s need to stay calm upon hearing speech that angers them:

 

“The provocative nature of the communication does not make it any the less expression. Indeed, the whole theory of free expression contemplates that expression will in many circumstances be provocative and arouse hostility. The audience, just as the speaker, has an obligation to maintain physical restraint.”

 

Emerson’s forbidden provocation is most similar to Mills’ Harm Principle. If the angry, starving mob showed up at the corn dealers’ house, their “fighting words” (expressed in action and inability to “maintain physical restraint”) would provoke violence against the corn dealer; ergo both Mills and Emerson would punish this speech.  With this foundation of an international free speech law formed, we must now look at past cases in which Emerson and Mills’ theories are supported.

 

Turning Philosophy into Reality

Multiple instances of past doctrinal decisions within the Supreme Court support Emerson’s freedom of expression theory.  These decisions were also made in light of whether or not any recipients of these communication messages were “harmed” in terms of the definition I have explained above.  I must also refer back to my Aeropagetic vs. Theocentric argument in which I have decided to view this definition of harm.  Though many United Stateslaws are based on the underlying Ten Commandments that prohibit murder, stealing, and bearing “false witness against thy neighbor”, there is no religiously affiliated speech that should be restricted whether it is considered blasphemous or offensive.  In the case of Burstyn v. Wilson, a screening of “The Miracle” was banned by theNew York state courts on accounts that many of its scenes were blasphemous and offensive to members of the community.  These citizens expressed their wishes for it to be removed from theaters immediately and the state court agreed.  However, this film is considered a form of art and Emerson would label it as “expression.”  The court duly noted that:

 

“motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.”

 

These “public attitudes” mentioned by Supreme Court Justice Clark also include the offense that people experienced from what they believed to be a blasphemous film.  No one is being forced to view the film and may avoid it if they so desire.  Though the prosecution claimed that the movie should be considered punishable because of its intent for a private profit, the court remarked that “books, newspapers, and magazines” would also not be covered by the First Amendment if this were true.  As religious views often differ among the public, the court understood the importance of treating the film as any other form of art or expression, regardless of its religious subjects.  Even intense religious views that cause uproar from the public and other speech that would be labeled as “fighting words” is still covered by Emerson’s allowance of equal expression for all.

 

As I have explained in the formulation of my international free speech guidelines, Emerson notes the four “problem areas” in which he believes expression may be punishable.  In cases that involve “fighting words”, most defendants are convicted on accounts that the reason behind their speech is to “harm” others.  Such accusations were brought upon the accused in Cohen v. California in which a young man walked into to a Los Angeles courthouse wearing a jacket that displayed the words “Fuck the Draft”.  Cohen was immediately arrested on counts of what the prosecution described as “maliciously and willfully disturb[ing] the peace” though Cohen never said a word.  To note, the case occurred in 1971 during the height of the Vietnam War when a draft law was in effect.  However, the case was overturned by the Supreme Court on a count that “the defendant did not engage in…or threaten to commit any act of violence”.  Though the country was in a war time precedent, Cohen’s jacket is protected by Emerson’s definition of seditious speech.  Cohen did not physically prevent any movement among others; his words were merely his opinion and did not go beyond “advice and persuasion”.  Cohen’s speech is also supported by Emerson’s belief that expression is permitted on the grounds that it is not a provocation to anger.  Indeed, many became angry by the jackets’ words, but Cohen never outright threatened anyone or wore a jacket that read “Kill theLos Angeles courthouse judge”.   It is up to the audience of Cohen’s speech to control themselves and “maintain physical restraint” just as Cohen did.  His non-violent expression is also protected by Mills’ Harm Principle as there was no insinuation of violence.  Though some may have been emotionally affected and offended by this blatant opposition to the draft, there will always be speech that others will disapprove of.

 

Now that I have established that messages concerning both religious and political aspects are protected (less they provoke or induce physical harm), I must now tackle the issue of harm to ones reputation.  When should one be allowed to make libelous remarks about another?  Does it matter if the remarks are true, false or exaggerated?  I agree with Emerson in his discussion on the problem area of defamation in which he says remarks against another are permitted if they are said in the interest of the public.  Since these laws will be enacted globally, I will refer to the Canadian Supreme Court case of Grant v. Torstar in which community member and public figure Peter Grant was mentioned in the Toronto Star newspaper to have claimed that he was using his influence in politics to build a golf course on his property.  The Star mentioned that the claims were given to them by Grant’s fellow neighbors and Grant sued on the grounds that what the Star had written was false.  The Star defended their right to freedom of expression and their mission to inform the public with what they felt to be pertinent information.  In light of the Star’s journalistic intents, the court applied a new rule of defense called “responsible journalism” which is based upon the following:

 

(a) the publication must be on a matter of public interest; and

(b) the publication was responsible, in that the defendant was diligent in trying to verify the allegations, having regard to all of the circumstances.

If Emerson were to evaluate this case, he would agree that the Star’s speech is 100% permissible on the grounds that it is in the public interest.  However, the situation would be different if the Star were to have reported that Grant had recently contracted herpes from sexual intercourse.  This speech is not covered as it not of the public’s interest to know a public figure’s medical history.  The golf course issue is permissible to be published in the newspaper as Grant mentions his political power as a tool to have it built.

 

We have thus far covered that both Emerson and Mills will protect libel and fighting words that do not provoke violence.  Where do we define the line with non-human violence?  It is engrained in human history to commit violent acts against animals.  Before I throw my audience off in the wrong direction, I would like to explain that I am merely referring to the action of humans hunting animals as a food source.  A violent act, whether it be the cutting of the throat or a gun shot to the body, is considered widely acceptable among this majority of omnivores around the world.  Would it not be fair to say that there should not be special exceptions to this rule, which would also include dog fights and videos of women “crushing” small animals for sexual arousal?  These issues are introduced and debated by the Supreme Court in the case of United States v. Stevens.  Stevens, a distributor of dog fighting videos, was convicted under 18 U.S.C. § 48, an addition to the First Amendment that prevented “crush” videos but listed hunting and killing animals for food as acceptable.  Stevens was accused of animal cruelty though he never participated in the dog fight videos and all of his distribution materials in question were filmed in areas of the world where dog fighting is legally acceptable.  Since Stevens was convicted under 18 U.S.C. § 48, the court found its legality unconstitutional under the First Amendment as they note that the law was “was enacted not to suppress speech, but to prevent horrific acts of animal cruelty”. Stevens’ lack of participation in the dog fights allowed him protection as his actions were legal.  Stevens passed Emerson’s standard of expression rather than action; if Stevens had actually overseen and organized this dog fight, it would have been considered an action and therefore illegal.  “Crush” videos, on the other hand, would not be covered by Emerson or Mills based on the fact that there was physical harm involved in the speech.  As a note, a new bill was created the day after Stevens’ case specifically for “crush” videos and was signed by Barack Obama as an illegal form of speech.  The actions of legislators to ban crush videos is warranted on the fact that this violence is not being committed to sustain a population through food sources, but strictly for entertainment value.  The only thing that allows “crush” videos to be punishable speech is its aspect of physical harm.  To play Devil’s Advocate, there is also the slight possibility that Emerson would cover “crush” videos as an artistic form of expression as they are made for entertainment.  I see this only as a possibility, however, as Emerson makes his stance against violent speech known.

 

Lastly I will approach the category of sexual speech.  As humans have the right to express themselves sexually, they also have a right to create public messages including nudity and sexual intercourse.  However, we also do respect the innocence of our children and their right to be shielded from these types of sexual messages until we feel they are at an age where they have matured enough to express themselves sexually and understand these images and messages.  I have grappled with the issue of when adulthood begins throughout this course.  The international average age of consent is 16 and I have decided that this should be the age within my worldwide speech law in which one is permitted to buy, view, and create sexual material.  Now that I have established lines in which one can and cannot be exposed to or create sexual materials, I must address the issue of choice.  I do believe that sexual communication should still be a private, controlled industry as there would be no way to control who would see it if it were public.  Whether it concerns minors or individuals who just choose not to associate with sexual speech, those who are not allowed to see sexual speech or who oppose it should never have it forced upon them.  In the case of Ginzberg v. United States, advertisements for sexual documents including “an expensive hard-cover magazine dealing with sex, a sexual newsletter and a short book purporting to be a sexual autobiography” were delivered to a number of citizens who had not requested the materials.  Ginzberg was convicted of pandering obscenities to the public and he appealed on the defense that “women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children.”  The court however, noted that even though the images were not blatantly pornographic in nature, they still dealt with the issue of obscene materials that were forced upon people who happened to open their mail boxes and find the circulars. The fact that “each of these publications was created or exploited entirely on the basis of its appeal to prurient interests”, said the court, allows it to be considered sexual speech.  Emerson’s “problem area” of obscenity protects any sort of expression of what the public may call “obscene”, especially if it be portrayed in an artful medium such as film, books, paintings, etc.  His Expression-Action theory covers all sexual speech (less it be a live performance of public sexual intercourse) except for when these materials are “thrust upon unwilling receivers so as to product a ‘shock effect’”.  However, it is important to note that Ginzberg claimed that his materials were to be used for children’s sexual education, rather than shock effect.  If Ginzberg were to be able to prove to the court under Emerson’s guidelines that he did not intend to create any sort of shock effect, this and only this would be the scapegoat in which these messages would be protected.

 

De-synthesizing: How do I really feel?

Though most of the speech that I have protected through my hybrid “Action-Experssion” and “Harm Principle” philosophy has stayed true to my personal views, I find myself looking back at my last two Supreme Court cases I have mentioned with questions.  Would I really want to support someone who distributes videos of dog fights? I believe that if Stevens was in any way involved with this horribly abusive form of entertainment, he should be punished.  He was a distributor; it is illegal in theUnited Statesand many other nations to distribute child pornography no matter where it was filmed.  I understand that there are differences between an animal being forced to fight and a child being sexually abused, but I do feel as though these two types of cases equate from a law standpoint.

 

The other issue I have with what my philosophy allows concerns Ginzberg’s case.  If Ginzberg’s circulars (which were created to encourage sex education) were distributed to my home and my child had picked it up while getting the mail, read it and asked me what it was, I would be absolutely furious.  I don’t agree with Emerson’s idea that obscene materials forced on people should only be punished if they are forced for shock value.  No type of speech should ever be forced; as Americans we have rights to express ourselves as we please and also make what we feel are the right moral choices for ourselves and our children.  Though I want to build an Aeropagetic-based model of free speech, I am doing so for the fairness of law.  Taking religion, morals, and ethics from the forefront of the equation leaves judges with a more calculated decision rather than one based primarily on emotions.

 

However, I also know that there cannot be court decisions without ethics.  If we were to completely ignore the majority of the world’s moral code of prosecuting for murder, there would hardly even be a law system.  As much as I would love to give everyone the right to say what they please, it would be my personal choice to restrict the speech of people such as the Westboro Baptist Church and those who create the sexualized cartoons in Japanese Hentai comics.  I do wish that there was some way to create an international moral code among all humans to place into law.  I have experienced much heated discussion over the issue of whether or not there is a universal moral in the world.  Many have attempted to defend “thou shall not kill” but murder is a constant issue and it will never be stopped.  I would like to change aspects of my philosophy and constraints that I have put into this international free speech law, but I know that there should never be special exceptions in terms of what we can say.  If we began to prohibit certain messages, it would be difficult to find a point to stop.

 

Conclusion

Though there are certain types of controversial speech that I would like to punish, I have realized the importance of John Stuart Mills’ Harm Principle and Emerson’s issues with provocation to anger.  Unless we are strapped down and forced to see or hear some sort of communication that we legally shouldn’t or that we don’t want to know, we always have the ability to say no.  We have the ability to leave the room, to ignore what angers us.  It is our fault alone if we are to insinuate or commit violent acts against the speaker and they have the personal right to express themselves as they see fit.

 

The only exceptions that should remain in free speech laws are those that involve children.  I believe that parents have the right to prevent their children from seeing speech that they would deem inappropriate.  Moreover, I believe that speakers have the responsibility to exercise caution while expressing free speech if there are children included in their direct audience.  Let me note that I am not asking everyone to consistently censor themselves; this caution should be used when a speaker knows there are children present.  A pornographer would not present his work to a group of elementary school children, but in an audience of consenting adults his sexual speech is acceptable.

 

It is my opinion that the underlying free speech philosophy guidelines I have created are the most equally fair standards for a global free speech law.  There is much difficulty in creating a common law that all can follow because the worlds’ diversity so greatly affects their laws.  In some countries in Europethat were deeply affected by the Holocaust, speech concerning the doubt of its existence is punishable by law.  In Pakistan, such as the case with Asia Bibi, the laws are written in conjunction with Islamic faith traditions which include being put to death for committing blasphemy against the prophet Mohammed.  In Canada, certain types of pornography are punishable by law for being considered “harmful to women”.  It is the diversity that we so greatly appreciate that determines the outcome of not only our laws but also our numerous political and moral clashes between nations and cultures.  As much as I would like to use the United States’ concepts of freedom of speech as a strict model for which to create a universal law, I must instead consult the Universal Declaration of Human Rights in which Article 19 states:

 

“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.”

 

While attempting to create a universal free speech law, I have noted not only the (sometimes extreme) cultural diversity among nations, but also the ever increasing globalization and sharing of ideas that exists today.  The most important aspect of this law is to remember the fact that we are all human; therefore we deserve the right to express ourselves freely.

Kony 2012

I’m currently using my Senior Synthesis blog as a medium to post this essay for a few days. I support the message of Kony 2012, HOWEVER, I do also have differing views about aid in Africa. You’re welcome to read and contact me via twitter at @DomLeplat with questions.

Also, read this for reference. http://justiceinconflict.org/2012/03/07/taking-kony-2012-down-a-notch/

 

TheCotonouAgreement & its Restraints on PostcolonialAfrica: Questioning the Effectiveness of Developmental Aid Programs

Introduction

            Current situations in many postcolonial African countries are alike.  Even after more than fifty years of political independence, many underdeveloped countries on the continent continue to suffer from economic, political, social and ecological tribulations which they cannot seem to climb out of.  Many of these countries have become politically independent during large increases of globalization, both economically and culturally and are fellow participants in global trading systems.  Upon entrance into this system, these countries had been given little knowledge, tools or aid to form their own successful liberalized system.  Colonizing countries did allow these new nation states political freedom but left them without the means to enter this new liberalized trading system successfully.  Shortly after independences, political disarray ensued including many human rights violations, political corruption and violence among these underdeveloped postcolonial nation states.

 Many institutions have set up numerous developmental aid programs to assist these countries in becoming self-sustaining, only to see violence, poverty and a lack of development continue.  Governmental organizations, the European Union in particular, have attempted to tackle these issues through developmental aid programs that highlight these specific issues that must be confronted.  By joining together with leaders in a number of underdeveloped nations (most from the African continent), the European Union and other governmental organizations created the Africa-Caribbean-Pacific (ACP) and Least Developed Country (LDC) lists to note countries worldwide that need the largest amounts of aid.  This paper will specifically focus on the work that the EU has done with ACP countries in terms of the Cotonou Agreement; a document based off of the previous Lomé Agreement which covers multiple aspects to assist in development including a great deal of economic, political and social issues.

However, the Cotonou Agreement’s lack of effectiveness raises the question if aid programs are actually restraining ACP countries from becoming self-sustaining.  Though these countries are receiving a large amount of economic aid and development assistance, is the real problem that the ACP nations are becoming so involved in the pressures to adopt Western political ideals and be involved in the globalized trading system that they haven’t attempted to solve problems in a more local perspective?  By reviewing Postcolonial Theory in terms of globalization, this paper will examine why the Cotonou Agreement’s pressuring guidelines for aid to adopt democratization and global homogenization in the terms of Western views has prevented ACP countries’ development into self-sustaining nations.  The agreement’s objectives are successful in addressing human rights and social issues that ACP countries need to resolve, but its effects have proved to be detrimental as the specific guidelines the countries must follow to receive aid deters from the main focus for change.  Globalization has the opportunity to be a great help to underdeveloped African nations, but only after they establish their own firm political base constructed without Western guidelines and influence.

Aspects of the Cotonou Agreement

            After its implementation in place of the Lomé Agreement in 2000, participating EU countries in the Cotonou Agreement agreed to “promote and expedite the economic, cultural, and social development of ACP states, with a view contributing to peace and security and to promoting a stable and democratic political environment” (qtd. in Udombana 71).  The main difference of the Lomé was that of the “peace and security” which specifically concerned human rights and poverty reduction.  As the agreement states “…without development and poverty reduction there will be no sustainable peace and security, and that without peace and security there can be no sustainable development” (EC 6).  The key point of this objective is the “democratic aspect” as this is the type of political system that participating EU members have hoped to effectively set into practice in these ACP countries.  However, much of their efforts have been prevented by consistent political unrest and poverty among the nation state’s citizens.  Subcommittees of the Cotonou Agreement such as the Joint Parliamentary Assembly which is “composed of equal numbers of EU and ACP representatives” are also key parts of the decision making process (qtd. in Udombana 86).  The agreement states that this committee “promote(s) democratic processes through dialogue and consultation…(and)…facilitate(s) greater understanding between the peoples of the European Union and those of the ACP states…” with a main focus of issues concerning development (EC 9).  This highlights the guideline for ACP countries to adopt democratic political systems as the EU participants believe this will be the most successful type of structure.

            The most important aspect of the Cotonou Agreement is the financial aid given to ACP countries to achieve these goals.  Funds are given to the countries based on the categories of its objectives listed above, as well as for economic development through the liberalized international trading system.   These countries also receive breaks in the international trading systems and are allowed low-tariff trading with EU participating countries; most LCD countries receive free-tariff trading.  The amount of aid given to each country varies, as stated by the Agreement: “Appropriate weight…shall be given to the corresponding measures in the ACP states’ and regions’ development strategies” depending on both their economic need and their political stability (EC 19).  Generally, countries that are in more need of economic aid are also those that generally are dealing with issues of violence, political uprising and human rights violations.  The European Union will continue to give aid to ACP countries who are governmentally attempting to combat these issues but the unfortunate truth is that there is little progress within these problem countries.  The issue now is to examine why this aid and pressures to be highly involved in globalization have continued to be ineffective ways to give many ACP and LDC countries the opportunity to be self-sustaining.

Initial Issues Concerning the Cotonou Agreement

            Criticisms of international aid to developing postcolonial countries reflect Gikandi’s comments on globalization that “citizens of the postcolony are more likely to seek their global identity by invoking the very logic of Enlightenment that postcolonial theory was supposed to deconstruct” (Gikandi 475).  These ACP countries accept the democratic political guidelines of the Cotonou Agreement not only based on the fact that they will receive aid for it but also because it means they have a position among the liberal international community.  However, this liberal political and economic system may not be the most effective option for developing countries.  William Brown comments “The process of decolonisation was paradoxical insofar as it represented an extension of a liberal international order and created obstacles and challenges to such an order” where democratic practices proved to be ineffective as “these superficially liberal systems did not last long” and corrupt dictatorships took over political rule (Brown 2000).  As Nsongurua Udombana quotes one of his additional works:

”The West must recognize that underdeveloped societies are not likely to become democratic. Democracy will not thrive in instability.  The West cannot simultaneously demand democracy and deny development.  It cannot expect people to cherish the ballots when their stomachs are hungry” (qtd. Udombana 90).

 

This leads to the largest problem that lies ahead for European Union members of the Cotonou Agreement: poverty and social instability must be significantly decreased before any kind of successful democratic system can exist.

            While continuous attempts to solidify democratic elections in ACP countries are being made, local people continue to starve, contract deadly diseases in large numbers such as HIV/AIDS and are victims of human rights violations and sexual abuse.  It is quite easy to falsely assume that if there is some sort of political instability, these problems will begin to decrease.  However, after more than forty years of work between the Lomé and Cotonou Agreements, it is quite apparent that the order in which these problems are examined needs to be re-appropriated.  Udombana comments on these issues, stating that “Spending on public health, housing and education      and other social services has been severely curtailed, resulting in a sharp decline in the quality of life in Africa” (Udombana 99).  Even within these social problems, the manner in which they are attacked must be reviewed, says Udombana. “Resources dedicated to fighting war or resolving civil and interstate conflicts could be freed to fight a different battle-poverty and underdevelopment” (Udombana 108).  In addition to the re-appropriation of these issues, Western influence and conditions that come along with aid from the Cotonou Agreement must be reviewed.

Political Formulations: More Local, Less Global

            It would be extreme to say that all aid to African countries should be stopped; many of these countries have thousands of people who are in need.  However, none of these ACP and LDC countries will be able to provide for their citizens or be a significant part in the liberal international order without a solid political foundation.  The problem here is that this political foundation is not going to come from the democratic ideals of their Western help.  The government leaders of ACP and LDC countries must continue to receive aid for social programs but must take their political systems into their own hands.  The EU must intervene when there is political corruption that cannot be controlled internally but African leaders must create their own governments.  It may be attractive for these leaders to accept the globalized ideal of Western democracy, but this only continues the “…homogenizing notions such as modernization, the authority of the nation-state as the central institution in the management of social relationships, and the idea of culture as the embodiment of symbolic hierarchies…” that continue to oppress these underdeveloped nations even after decolonization (Gikandi 476).

            The effects of pressure to democratize have continued to leave ACP and LDC countries in political disarray.  “Africa must get out of the mentality of dependence on foreign resource transfers and commit themselves toward new and radical ideas” say Udombana, nothing that aid is still completely necessary at this point but the political pressures of the EU must be dissolved in the Cotonou Agreement.  Aid should be for the people, not for the deployment of certain political views says Brown: “economic support…should be granted to the South with as few conditions as possible set over its use…or political situation inside the recipient state” (Brown 2000).  This gives developing countries a chance to develop on their own without certain political recommendations and pressures.  These restraints keep ACP and LDC countries within the grasp of their colonizers and without them, they have more of a chance to prosper.  The political processes are therefore localized and globalization of politics will not be possible until there is a solid foundation.

Modern Imperialism’s Hold on Africa

            After reviewing what the European Union can do to lessen their political grip over the future of ACP countries through the Cotonou Agreement, the issue of African natural resources must be raised.  One of the main reasons for the European colonization ofAfricawas to tap into the rich natural resources that the continent holds; precious materials including oil, copper, diamonds and other minerals are consistently in high demand.  The issue with decolonization for colonizing countries is that with the independence of colonies came a loss of cheap and easily accessible natural resources.  Now with the implementation of documents such as the Cotonou Agreement, participating EU countries essentially have complete control of ACP countries’ economies including their resources.  These continuing controls have been often criticized as Imperialistic and allowing these Western nations complete access to natural resources that they feared losing during decolonization.

            Western colonizing countries took advantage of their colonies as another source capitalistic growth, especially in the international trading systems.  Author Ania Loomba states “Modern colonialism did more than extract tribute, goods and wealth from the countries that it conquered-it restructured the economies of the latter, drawing them into a complex relationship with their own” but the unfortunate fact is that “whichever direction human beings and materials travelled, the profits always flowed back into the so-called ‘mother country’” (Loomba 9).  The paradox that exists within this closely interlaced economic system between colony and colonizer is that though Western colonizers were feeding the economies of disadvantaged countries and helping them grow, the colonies were never receiving the money necessary to for them to become self-sufficient when the time for independence came.  Though they had created a complex and developed trading system, it was a system consistently controlled by the colonizer and was bound to fall apart once the responsibilities shifted to the newly independent African nation.  It is now imperative that the issues at the forefront of the quest for ACP nations’ self-sufficiency lie within the political and economic holds that Western countries continue to have from aid programs such as the Cotonou Agreement and that these European nations must reevaluate the intensity of their guidelines for receiving aid.

Conclusion

            Though postcolonial African countries have received political independence, their dependence on foreign aid by governmental programs such as the Cotonou Agreement has hardly allowed them to be fully independent, self-sustaining countries.  With so many political pressures to implement Western-based democratic systems in terms of guidelines for aid, the more important issues of social stability and the well being of these countries citizens has been ignored.  Aid cannot completely stop as it would keep these countries in a stage of disarray and political corruption and uprisings would continue. The European Union and African nation state participants of the Cotonou Agreement must re-evaluate the conditions in which ACP countries are receiving this aid and full governmental control must be given to the leaders of the ACP countries upon the grounds that they do not have serious political unrest that should require military assistance.  This way, the African government officials can work on “strengthening [their] capacit[ies] to govern and develop long-term policies” while continuing to receive aid from the European Union to help with social issues such as hunger and poverty (Udombana 90).  In addition to this governmental freedom, participating EU countries in the Cotonou Agreement must reassess their agenda for ACP countries in a more ethical manner.  Though these countries are no longer imperialistic colonizers, they have evolved into an “empire” that continues to control as they please.  Loomba notes postcolonial authors Michael Hardt and Antonio Negri, stating that “whereas the old imperial world was marked by competition between different European powers, the new order is characterized by a ‘single power that overdetermines them all, structures them in a unitary way, and treats them under one common notion of right that is decidedly postcolonialist and postimperialist’” (qtd. in Loomba 214).  There must be an even balance of economic aid and political freedom in ACP countries or they will never receive the opportunity to prosper.

 

Works Cited

Brown, William. “Restructuring North-South Relations: ACP-EU Development Co-Operation in a Liberal International Order.” Review of African Political Economy 27.85 (2000): 367-83.

European Union. Second Revision of the Cotonou Agreement-Agreed Consolidated Text.Brussels, 2010. <http://ec.europa.eu/development/icenter/repository/second_revision_cotonou_agreement_20100311.pdf&gt;

Gikandi, Simon. “Globalization and the Claims of Postcoloniality.” The Post-Colonial Studies Reader. 2nd ed.London: Routledge, 2008. 473-76.

Loomba, Ania. Colonialism/Postcolonialism. 2nd ed.London: Routledge, 2005.

Udombana, Nsongurua. “Back to Basics: The ACP-EU CotonouTrade Agreement and Challenges for the African Union.”Texas International Law Journal 40.1 (2004): 59-111.

Challenging the Moral Compass for Fair Law: Child Pornography

One of the more widely debated topics among communication law is that of sexual speech.  These laws implement age limits on what is considered “adult material” and put a specific emphasis on the danger of exposure of these adult materials to children.  With just a mention of the words “child porn”, the most instant connotation the term is with pedophiles, jail time and a sickness to do things to children that are uncomfortable to fathom.  According to the Federal Child Pornography Laws, child pornography is defined as “the visual depiction of a person under the age of 18 engaged in sexually explicit conduct”.  However, child sexuality laws exist in much broader terms.  Many Americans, especially parents, want their children to grow up in a safe environment where they aren’t continually bombarded by sexual messages or run the risk of becoming sexual at a young adolescent age.  The Supreme Court has encountered a number of cases in which the “safety” of children in terms of sexuality is shown to be at risk; issues of messages mentioning sexual innuendos when minors are present, the simulated sexual acts of children in TV and cinema, and also one of the most recent highly debated topics among parents and educators: teenage sexting.  However,United States laws concerning child sexuality are oftentimes more strict that other countries; theUS generally has a higher law of consent than the rest of the globe and much stricter laws on obscene speech and sexuality in the media.  The question to ask now is where is the possibility to find an international medium for laws concerning children and sex/profanity?  Do children have rights to free speech?  Who is a child and when do they become an adult?  How can there be laws created which do not condemn art or materials without intent to harm children as legal?  It is much simpler to attempt to create laws with a moral compass in mind, but free speech laws and morality oftentimes conflict.  The purpose of this blog post will be to explore past Supreme Court decisions concerning child sexuality and attempt to define an international law standard in which messages with non-harmful intentions (such as art, film, etc) can be protected through free speech and which level of free speech philosophy (Baker, Chafee, etc) is most effective in building this law. It will also delve into free speech rights of students and current issues such as sexting and how these situations can be dealt with in terms of child speech laws.

 

Many would agree with the statement that “young children are innocent”.  Most parents strive to raise their children in an environment where they will be protected from vulgar, sexual messages that they most likely would not understand at a young age.  Americans in particular have a strong intent to keep sexual messages away from adolescents until “they are ready” to learn about sex, but when is ready?  The average age of consent worldwide is 16;  many states in the US require 17 or even 18 to consent for sex.  Sexual materials are also not available toUnited States teens until they are 18 years old (regardless of the state consent age) whereas teens in countries such asPoland, with a consent age of 15, are able to buy sexual materials including pornography at their age of consent.  It is also important to compare the difference in age among minors.  Children and young adults can be categorized into the Greek suffixes –pedic (0-11 years old), -hebic (12-14) and –ephebic (15-21).  The average age that children go through puberty is at the ages of the hebic stage and many countries particularly inAfrica consider children passing into adulthood when they reach puberty.  Puberty is, after all, the point in time when children start changing sexually; females are able to bear children and males go through significant physical changes.  Others would argue that children need this time to transition into adulthood and since most children have hit puberty by age 14, it would seem that 15 would be an appropriate age to allow them access to sexual materials if they so desire.  However, the moral compass generally leaves many uncomfortable with the thought of giving a 15 year old sexual freedom so I believe the age of 16 is an appropriate age for international standards.

 

Now that an international adult age has been set, I must now review past Supreme Court cases in comparison with free speech philosophies.  One of the most important aspects to review these cases in is whether or not the accused admitted that they intended to use sexual language or share other forms of sexual messages with a minor present.  An example such as Bethel v. Fraser where Matthew Fraser’s speech supporting a classmate’s campaign for high school government was considered obscene and the court supported the school’s suspension of Fraser.  Fraser never blatantly used profanity, but by noting that his classmate was “firm in his pants…firm in his shirt” and “will go to the very end — even the climax, for each and every one of you”.  Upon being confronted by his principal after the speech was made in front of the entire student body, Fraser confessed that he did intend to present his speech as sexual innuendo and several teachers in the school complained of the speech disrupting normal learning hours.  Considering that Fraser’s high school consisted of students from the ages of around 14-18, he did in fact speak sexually in a government-funded institution in the presence of minors.  The verdict of the case was delivered under minimal scrutiny as the court notes “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”  This decision represents Zechariah Chafee’s view of “worthwhile” and “worthless” speech.  Fraser’s speech was considered obscene and therefore worthless which allowed the school district to punish Fraser.

 

Alternatively, minors should be allowed the right to free speech in public schools as long as their speech that may offend someone or disturb learning is worthwhile.  The well-known case of Tinker v. Des Moines School District highlights the importance of student free speech through silent protest.  The arm bands worn by the students facing punishment from their school were not disturbing classes; they were simply stating their opinion to oppose the Vietnam War.  Though some claimed to be offended by the arm bands, there was no intent on the students’ part to harm anyone and there was no physical or verbal fighting on part of the students.  In terms of Chafee’s “worthwhile” and “worthless” speech, the philosopher would consider the arm bands as worthwhile because they had the potential to create discussion on behalf of social interests.  The bands would also pass Chafee’s clear and present danger test; Justice Fortas notes that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” and that the school must revoke the students’ suspensions.  In schools, students have the responsibility to respect their peers by avoiding hateful and obscene speech and schools have the ability to take action if this type of speech occurs or significantly disturbs the learning process.  Now it is necessary for me to examine the more serious and ambiguous side of speech laws concerning minors: sexuality.

 

Increases in technology have led to a new medium in which minors can share pictures with each other via their cell phones, unbeknownst to their parents.  This technological freedom has led to an increase in a new trend called “sexting” when a nude or semi nude photo is sent to another via pictures messages.  The issue of this problem lies deeper than within minors expressing their sexuality, but that these photos can be easily exploited to hundreds and thousands of other people, including those over the age of 18.  The adult receiver of a picture message of a minor instantly becomes a receiver of child porn.  Those who exploit these sexting photos also are punished with great consequence.  Philip Alpert, 18 at the time, sent a “sexted” photo of his 16 year old ex girlfriend to hundreds of people to seek revenge after they separated.  As Alpert was sending an obscene picture of a minor to others, he was found guilty of distributing child porn.  Alpert is now a registered sex offender and has had problems getting a job or getting into college ever since the conviction.  Sexting is becoming a large problem but is it necessary for lawmakers to implement such extreme sentences?  Thus returns the issue of intent.  It can be proven that Alpert’s intent was indeed malicious when he sent out his 16 year old ex-girlfriend’s racy photo; what he did can be defined in the court as distribution of child porn.  It’s safe to say that the photo was meant for private use and as unfortunate as Alpert’s decision was, his punishment is warranted.  Then again, what kind of decisions should the court make in terms of nude or suggestive pictures of children that were not intended to be harmful?

 

In the realm of the arts (including visual depictions, film, etc), works that have been seen as offensive to some have been saved for the sake of the material being of artistic value.  In New York v. Ferber  a movie store owner was convicted of selling movies to an undercover cop that depicted two 14 year old boys masturbating.  The issue with the film was that though the boys were in no way being physically abused or in pain, they were under the general consent age of 16.  Does consent apply to participating in film?  Or should we value this film as something of artistic value?  This sex act in particular actually happened;  it was not simulated and therefore it does run along the lines of child pornography because the boys are underage.  At first instinct I want to go with the notion that this is what boys this age do; however, making it public and whether or not they consented to masturbate in the movie, they are still young and Ferber has the intent to distribute the movie.  If we return back to Chafee’s theories, this speech would be worthless and considered punishable according to him, but what about artistic value?  One important thing to remember is that the work can be taken as a whole, as did in this case, certain scenes may be punishable.  If the plot of the movie can effectively progress without these sexual scenes in it, I believe they have the opportunity to be omitted if the filmmaker agrees.

 

But what about simulated sex acts with children in film?  A German film The Tin Drum depicts a young boy, Oskar, who is supposed to be 16 but is actually played by an 11 year old boy who is in love with his 16 year old caretaker, Maria.  The movie is extremely sexualized in multiple scenes but nudity only occurs when Oskar and Maria are changing at the beach and the young actor playing Oskar simulates the act of performing cunnilingus of Maria.  The movie has created much uproar inAmericabut is more widely accepted in its home country ofGermany.  Though the act is simulated and it does lead audiences to understand what is being acted out, the act never actually happened.  Is it necessary to punish things that did not actually happen, especially when they occur in film?  This is one of the cases where I have not been able to make a decision.  I also struggle with the issue of Japanese “Hentai” comics as though they are not real people in the comics; the pictures portray underage minors having blatant sexual experiences.  Are we to judge them as “worthless” speech or do we look at them as art?  Do we look at Oskar’s simulated performance as being harmful to a child, even though there was no sexual contact among the two actors?  The lines become blurred in art, especially if no sexual act occurred.

 

One area where I believe we must draw the line is with photos of our children.  Most parents love to take photos of their children whenever possible which includes times where they would be nude.  These images are not intended to be sexual; many young children spend much of their time naked and are born naked and most of us do believe that photos like this are “cute”.  A great example of photos such as these is with Sally Mann’s photography book Immediate Family.  In this collection, Mann photographs her children around their house playing with toys, reading books, lying down on their beds, etc.  In many of the photos, her children are nude.  They show no signs of doing sex acts to themselves or each other, real or simulated.  There is no sign of arousal or pain.  If Mann would like to share her photos with the world, who are we to stop her?  Are we to condemn every parent who takes a picture of their child taking a bath and sends it to relatives?  Merriam-Webster Dictionary defines pornography as “the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement”  but makes no mention of “simulating”.  Why do we add simulated sex acts to child pornography?  I say we change the law to omit “simulated” as a crime has actually not been committed.  By reviewing these cases in terms of Chafee’s worthwhile and worthless speech, I believe that Chafee would recognize Mann’s photos as worthwhile; they are mementos and a work of art.  We must use both a moral compass and our notions of free speech to understand what should be considered right and wrong; I am sure that many of us would agree that sending out sexting photos of anyone to hundreds of people is wrong, as is distributing a video of minors masturbating.  By using this morality in conjunction with a solid law, I believe that art that depicts a simulation of sex acts or art that includes nude children in a non-sexual setting should be covered.

“The Bounded Agora” & The Case of Ali Al-Timimi: 1/25/12

“Are words like matches?”  This question continually came to mind throughout the court case concerning Ali Al-Timimi and whether or not his words posed a legitimate threat to the safety of the citizens of theUnited Statesor if this was just another acceptable use of the First Amendment’s rights to free speech.  Throughout the years philosophers have toyed with the idea of “how free is free speech” and if and where there should be a line created to omit certain types of speech that could be considered dangerous.  Important things to take into account during the judgment of a case such as this are what kind of levels of free speech philosophy do Al-Timimi’s words apply to and how the evidence of the prosecution, defense and prior knowledge concerning cases similar to this proved that the speech was permissible or punishable.  This judgment will come to a conclusion based on the exploration of these past cases which are also supported by evidence of my peers.

One of the terms heard quite often throughout the case was “immanent harm” and whether or not Al-Timimi’s words put people in any sort of danger.  Immediate thoughts in this case are “if Al-Timimi didn’t go out saying ‘go and kill Americans now’ then why does the government wish to punish him?”  However, the power of persuasion and anti-American speech, no matter how much it is covered, can lead to horrible consequences if acted upon by others.  Before making a decision on this case, there must be certain established guidelines that will act as an assistive scope in which to look at the risk of Al-Timimi’s speech.  One to begin with is whether or not theU.S.government has the authority to put the interests of their country ahead of any free speech laws that currently exist.  The prosecution’s request to note the wartime precedent highlights their need for governmental scrutiny on the case, especially that of minimal scrutiny and the “clear & present danger test” in which the government has full control to override certain free speech declarations.

One case concerning the use of minimal scrutiny by the government during wartime is that of Dennis v. United States where Eugene Dennis, a member of the Communist Party USA was tried for his anti-American remarks during wartime in concern that he was conspiring to overthrow the United States government.  Dennis, an American citizen like Al-Timimi, was convicted of violating multiple clauses of the Smith Act, which states that no one shall “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence” or “to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence” (U.S.C. 1946 ed).  Upon implementation of the clear & present danger test, the prosecution noted that “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech” and Dennis was found guilty for intent to conspire against the government.

Dennis was convicted of these violations as he was a declared member of the Communist Party USA, but Al-Timimi on the other hand was a lecturer at the Center for Islamic Information and Education, not any declared terrorist or extremist groups.  The crimes which he is convicted for occurred in a small meeting at the house of Yong Kown in which his indictment states that in September Al-Timimi told his counterparts in the meeting that “the time had come for them to go abroad to join the mujahideen engaged in violent jihad in Afghanistan” along with information on how to reach the Lashkar-e-Taiba extremist training camp and how to obtain visas to the camp’s location in Pakistan (US 2004) .  These, among other statements by Al-Timimi at this time of war have the ability to violate the Smith Act just as Dennis’ case did.  Al-Timimi’s words do in some ways encourage acts that could lead to violence in theUnited States and among the government, but did not outright tell his followers to hurt others.  However, the next type of case that the Justices of Al-Timimi’s case must review are those during peacetime and if Al-Timimi should be punished on account of his speech that did not include physical action against the United States.

During the in-class argument of Al-Timimi’s case, the defense used the past case of Brandenburg v. Ohio to support first amendment citizen rights in situations concerning threatening speech during governmental peacetime.   Brandenburg, who was convinced under Ohio state law, was tried for “advocat[ing] . . . the duty, necessity, or propriety [395 U.S. 444, 445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and though Brandenburg never held any sort of weapon as some of his counterparts did in the recorded Klu Klux Klan video he was in, he did state that “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken” (Brandenburg v. Ohio, 1969). Brandenburg was released on account that his words did not violate what his defense called a “bald definition” of the crimes he was committed of.

A case more applicable to Al Timimi’s in terms of the use of weaponry and instruction is that of Rice v. Paladin Enterprises in which Paladin Press published the book Hit Man: A Technical Manual for Independent Contractors which was essentially a detailed manual of how to kill another human being.   The book included recommendations of which specific weapons to use, ranges from which to shoot and even how to make a sniper scope.  The case was sparked by James Perry’s triple murder in 1993 in which Perry admitted to learning most of the information he used to kill murder three people from Hit Man.  Perry of course was convicted and sentenced in a separate case but allegations against the publishing company were brought upon the fact that the book, although considered free speech under the First Amendment upon publishing, essentially aided in murder.  The court ruled that Paladin Press was liable for legal action if they did not settle the lawsuit put against them in the case.  In addition to the ruling against the publishing company, the verdict was given during government peacetime in which minimal scrutiny and the clear & present danger test would not have been necessary.  The most critical point to take away from this case in terms of Al-Timimi’s is that though Hit Man did not directly tell James Perry to go out and murder three people, the book gave Perry the necessary tools to do so.  The Judges of Rice v. Paladin Enterprises note “Hit Man does not merely detail how to commit murder and murder for hire; through powerful prose in the second person and imperative voice, it encourages its readers in their specific acts of murder”.  If “powerful prose in the second person and imperative voice” is all it takes to be guilty for aiding in a crime, would Al-Timimi’s remarks urging his counterparts to fight for the jihad not be considered unlawful?  These are the terms among previous cases that the Justices must take into account when making their final decision.

In comparing the words of Dennis, Brandenburg, Hit Man and Al-Timimi, which speech should be considered the most threatening? The most dangerous?  While reviewing each of these four cases and the in-class argument, it is important for a judge to note whether or not remarks are made during wartime.  Brandenburg’s were comparably the least threatening among the cases but still insinuated some sort of harm against the United States government.  Now the question the Justices must struggle with is “When to limit free speech?” and “When should speech be protected/punished?” Among the numerous philosophical theories concerning the freedom of speech, justices must look at the works of philosophers such as Zechariah Chafee, Thomas Emerson, and Edwin Baker.  Chafee believes that one can speak freely about individual interests and social interests.  Under Chafee’s rules, Al-Timimi’s speech would be considered free unless of course it affected public safety of search for truth and “in war time, therefore, speech should be unrestricted by the censorship or by punishment unless it is clearly liable to cause direct and dangerous interference with the conduct of the war” (Tedford et al., 435).  The problem with attempting to judge Al-Timimi’s speech through Chafee is that it can be slightly ambiguous to say if his urging his counterparts to join the training cap will end up causing “direct and dangerous interference.”  This would be true by looking at possible consequences in the future which would include those who went to the extremist training camps inflicting harm onUnited States soldiers so in the long run, Chafee’s theory would prove Al-Timimi’s words punishable.

Emerson’s theory attempts to find the line between “expression” and “action.”  He notes that people are allowed to believe whatever they prefer on an issue and may communicate it however they please (Tedford et al., 438).  The only times that Emerson argues that speech should not be protected is if it is seditious opinion “that go[es] beyond advice and persuasion[and] treasonous conduct, which would mean that it would be up to the Justices to decide whether or not Al-Timimi’s speech is treasonous but it surely is not action and does not go beyond advice and persuasion.  Baker gives much more leeway for free speech in that his theory recognizes all speech as free less includes what could be considered as “fraud, perjury, blackmail, espionage, or treason” (Tedford et al.,  442).  As with Emerson, Al-Timimi’s would be up to the Justice’s discretion whether or not his speech would be considered treason.  Though the theory of free speech can often be vague, it still serves as a guide from which to judge if certain speech should be protected or punished by the First Amendment.

Upon review of all prior cases concerning free speech in terms of anti-American, hateful, and/or dangerous speech (direct and indirect) it proves difficult to come to a decision of whether or not Ali Al-Timimi’s urging of his fellow group members to go to extremist training camps, his paintball training session with them or his negative remarks concerning the space shuttle Columbia should be punishable.  In consideration of past cases such as Dennis v. United States and Rice v. Paladin Enterprises,  Al-Timimi would be considered guilty as his speech not only violated the Smith Act, but his speech, though indirect to the actions committed, still serves as an aiding source to which conspiring against the United States government occurred.  However, in terms of Brandenburg v. Ohio, Al-Timimi’s speech would have been permissible on account that there was no actual harm done.  In terms of the theorists, all of the afore mentioned could lead Al-Timimi’s speech to be punishable as it could be considered treason and could likely affect things negatively for theUnited States in the war.  The one piece of evidence that the prosecution of the in-class debate discussed that proves Al-Timimi’s speech to be punishable by law is that his urging his fellow group members, though indirect, to join and fight for the jihad could prove detrimental for United States soldiers during the current wartime precedent.  Al-Timimi’s group members followed through with his persuasion and now all of them must receive the necessary punishments.  Words can indeed be like matches, especially when there is a high risk that they will ignite.

 

Print Sources:

Tedford, Thomas L., Dale Herbeck, and Franklyn Saul. Haiman. Freedom of Speech in the United States. State College, PA: Strata Pub., 2005.