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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.
Dom L'Eplattenier-CMJR 494 Judgement Page 