Synthesis

It seems my reservations upon entering Communications Rights & Law were unwarranted. I was concerned that I would enter the class with a preconceived notion of what should or should not be protected. I was most apprehensive that I would tend to protect the free speech of one individual or group because I agreed with what they were saying, but punish another person or group of persons for making similar statements, simply because I did not agree with them. Yet, as I examine my writings, my belief in certain philosophers, and my personal sentiments toward various cases, I seem to be an overall protectionist.
My writings have been founded in the beliefs of two major philosophers – both of whom assert the importance of self-fulfillment and independent expression within free speech. Thomas Emerson, professor at Yale, argues that the “freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses” (438, Tedford & Herbeck). Emerson observed the court’s responses to most theories of free-speech cases, deeming them vague and inconsistent. In an effort to establish a more comprehensive First Amendment theory, Emerson contends there must be a “distinction between “expression” and “action” (438, Tedford & Herbeck). Emerson’s expression-action theory scrutinizes the difference between one’s freedoms of expression, which allows the individual to communicate their beliefs through any medium, yet if expression develops into action, which can be controlled, an individual may be punished. I especially appreciated Emerson’s perspective on protection of statements of obscenity. “Most of what society calls “obscenity” is a form of expression fully protected under the expression-action theory. This includes books, films, theatrical presentations, sculpture, paintings, etc…. However, action consisting of live conduct could still be prohibited” (439, Tedford & Herbeck). I value Emerson’s resolution that art and print should hold protection, while live conduct would be punishable.
Similarly to Emerson, C. Edwin Baker, Professor of Law at the University of Pennsylvania developed an argument for free speech based on self-fulfillment and participation in change, the liberty theory (441, Tedford & Herbeck). These two values support the rights and autonomy of the individual. The liberty theory maintains that free speech does not protect a marketplace of ideas, but “an arena of individual liberty from certain types of governmental restrictions” (441, Tedford & Herbeck). Baker argued free persons should not allow speech to be defined for them; rather they should create their own definition. The liberty model protects most speech, except for violent or coercive expression which causes actual harm, or that which constitutes fraud, perjury, blackmail, espionage, or treason (442, Tedford & Herbeck).
Both Emerson and Baker protect as much speech as they can, minus that which may incite actual harm. As I consider cases like Bragg v. LSU or Virginia v. Black, I morally disagreed with the xenophobic words and actions taken, I was offended, yet I did not feel because my personal feelings were hurt that the individual should be punished. With this in mind, I am a proponent of John Stuart Mill’s harm theory. The harm principle affirms that any doctrine should be allowed no matter how immoral it may be, placing only one principle of limitation upon one’s expression, that which results in an action that directly invades the rights of a person.
In the landmark case Virginia v. Black, the defendant was arrested for burning a cross “in a public place.” The Supreme Court was presented with defining whether or not burning a cross should automatically be considered a racist threat. The Court concluded that only cross-burning that constituted a “true threat” of actual bodily harm could be prohibited as a crime (181, Tedford & Herbeck). In my opinion true threat creates a marker when words become action(s), similarly to Emerson’s expression-action theory – your speech will always be protected, it is when you act, especially out of passion, hate, and raw emotion that you are no longer protected under the First Amendment.
Another landmark case that represents my beliefs in the harm principle is Brandenburg v. Ohio. Clarence Brandenburg was a leader in an Ohio chapter of the Ku Klux Klan. Brandenburg was recorded threatening violent acts against the president, Congress and the Supreme Court. The Supreme Court overruled the district court’s sentence affirming there must be a differentiation between the advocacy of ideas and the advocacy of illegal actions. Again, Emerson and Baker provided fundamental principles within this particular case. The court determined the government was required to prove that the danger presented by a speaker was in fact real, not exaggerated or invented. Brandenburg v. Ohio went beyond the previous standard of measure of clear and present danger, to create an incitement standard, in which provocation of illegal action is both, likely to occur and will transpire immediately (67, Tedford & Herbeck).
Thus, my philosophical grounding is rooted in the promotion of self-fulfillment, as identified by Emerson and Baker. I believe in the harm theory, established by John Stuart Mill, exemplified in Brandenburg v. Ohio and Virginia v. Black. I cannot say with complete certainty that I am an absolute protectionist of speech, consequently I adhere to the incitement standard and would like to apply a strict scrutiny to most cases, in which the government must prove it has a compelling reason to regulate or punish the speech.
It has been relatively easy for me to protect the speech presented in class, even that which may propagate hate, and racism. The only time that I was really challenged to verbalize my beliefs was in my final post concerning child pornography. It was difficult for me to describe my stance, as it was one of the first times I was legitimately wavering between the offense theory and the harm theory. The offense theory, according to Joel Feinberg, acts as a guide to public censure. The extent, duration and social value of the speech, the ease at which the speech itself can be avoided, the intensity of the offence, and the number of people insulted are all examined in relation to the offense theory. I struggle with accepting the offense theory for a number of reasons. The first is that to punish someone because they seriously offended an individual, or even a handful of people has no consistency. Depending on the time, place and manner with which one speaks, could impact the intensity, number and duration of offense. I do not believe that a national offense theory should be applied, when simply depending on the region will affect whether or not a person is punishable.
I am also challenged to accept the feature within the offense theory that relates to the number of people offended. As an individual that has based my writings and beliefs off of the rights of individuals, as witnessed in my very first response posts it seems unconventional to punish someone, or even have the means to punish someone, simply because they offended another. What may be distasteful to one may be just fine to another. For example, Jefferson Bragg, an 18-year-old freshman at Louisiana State University made a number of racist comments on the school campus. He may have offended many students, faculty and staff during his derogatory discourse. Yet, had he been in surrounded by a group of white supremacists’, his comments would be akin to his audience – How does the court deem punishment appropriate then?
In recognizing that I find little value in the offense theory, makes me contemplate what it was about the issues of child pornography that made me falter in my opinions. I was not personally offended when watching The Tin Cup or The Lost Soldier. I thought Sally Mann’s photographs were raw and artistic, not pornographic – yet, the thought of someone pausing The Tin Cup or cropping one of Sally Mann’s photographs and zooming in on a particular area of a naked child did make me uncomfortable. While reading about child pornography I felt conflicted and tense thinking about the consent of a child. At first I said The Tin Cup should not be punished in part because the young actor was consensually performing. Yet, what does it mean if a child consents – Is a child capable of making rationale and responsible decisions, like whether or not to be photographed or filmed naked? The other side of the token has to be parental consent (if in the United States). However, a number of ulterior motives can arise from parent/guardians placing their child(ren) in the limelight. These thoughts were the basis of why I would want to add a SLAPs clause to protect certain images of children.
In my final posting I did not add child consent clause, as I assumed with any professional images (mainly film) there would already have to be consent not only from the child, but from the parent/guardian as well. Apparently this is not necessarily true. Also if I add a SLAPs clause, I am advocating for offense theory analysis. It seems obvious now that I could not simply combine the offense theory and harm theory when looking into protecting/punishing child pornography, but isn’t that what we always want to do – create some protection or penalty that works well for us?
Rereading my post on child pornography I would still like to base my changes of definition for child pornography in the harm theory, yet I would ideally like to create some clause for emotional harm, not just physical. Therefore I would take out my previous implementation of the SLAPs clause, include a child consent clause, a true threat article and look at the various options, if any, to add an injury of emotion and mentality section. If these could be implemented, Sally Mann’s photos could still be shown and considered art, sexting would be protected, as well as films like The Lost Soldier and The Tin Cup.
There it is: I am a harm theory, protectionist, looking out for the opportunity of self fulfillment in relation to the First Amendment. I have been offended multiple times within Communications Rights & Law, yet I have never desired to punish any one person or group for deplorable words of discrimination, or vulgarity, rather I have become interested in finding ways in which to engage those who think differently than I in a constructive and educational manner. I am curious to find new avenues of expression and examine more closely how we use laws to offer freedom as well as place limits on the people of America.