Communication Law Synthesis

My experience studying the ins and outs of communication law in the United States has been a rollercoaster to say the least. I remember walking into class the very first night and being asked whether or not I would protect or restrict speech that dealt with animal cruelty, obscenity, threats and even child pornography. Being asked my personal opinion on the first night was nerve racking and definitely caught me off-guard. However, through the course of this quarter, I have really enjoyed the confusing and sometimes frustrating process of developing my own theory of free speech. Coming into this class, I had never contemplated the complexity of free speech policy. By exploring the various categories of free speech and understanding where they fall on the spectrum of acceptable and unacceptable expression, I have come to understand when and why I would ever limit the freedom of expression.

The handful of philosophers that maneuver the topic of free speech are very helpful in establishing my own guiding principles. In the beginning of the quarter, I fell in love with John Stuart Mill’s famous quote: “If mankind minus one were of one opinion, then mankind is no more justified in silencing the one than the one - if he had the power - would be justified in silencing mankind"(On Liberty). Mill’s notion of the marketplace of ideas is very important in understanding the importance of social stability in accordance with the individual role in society. However, the prime focus of Mill’s theory is to promote the discovery of truth and to benefit society as a whole. The realm of individual fulfillment is not really discussed by Mill, which I think points to a weakness is his theory. On the other hand, C. Edwin Baker does touch on the importance of individual fulfillment and the importance of self-determination. Edwin Baker bases his theory in two key values: Self-fulfillment and participation in change. This is a very libertarian theory, which I think does a great job of supplementing Mill’s theory. I think that individuals should be allowed to fulfill their expressive needs and desires as long as they do not come in the form of violence, coercive activity or the violation of rights of others. I like Baker’s philosophy because it does not entirely negate the social value of expression, but it also holds individual fulfillment as priority in free speech protection.

Throughout the quarter, as I analyzed specific cases dealing with the categories of protected and unprotected speech, I found myself fairly consistent. For the most part, I found myself relying on the precedent set by Brandenburg v Ohio, also known as incitement. I believe that speech should only be restricted if it incites imminent and immediate harm to someone (human or animal). One of the first cases I applied this to was the issue of incitement to genocide in the case of the Rwandan Genocide. I found Hassan Ngeze, the founder, publisher and editor of Kangura, not guilty. Even though his speech was clearly offensive and had a tendency to cause harm, it cannot be proven that he directly incited violence in the Rwandan Genocide. I stand behind this decision because although I do not agree with his choice to express himself in the manner he chose, I do not feel the government or anyone else has the right to impose restrictions on his individual liberty to express himself without causing direct harm to others. Like Baker, I would argue for the importance of self-determination and the freedom of the individual to make their own decision about how to express themselves. We can hope that people communicate in a socially responsible manner, but it is not the government’s responsibility to force them to behave responsibly if violence is not being incited.

In dealing with the issue of obscenity, I was also compelled to extend the utmost protection to obscene or sexual speech. Sexual expression is a fundamental aspect of the human experience and there should not be a universal definition of what it should look like or how it should be expressed. In the Supreme Court, the burden of proof is traditionally placed on the government or the plaintiff. In other words, the defendant is not required to prove the worth of their own speech. However, in the case of obscenity it is reversed; the burden of proof is on the creator of the speech. This is something I find quite unnecessary. I believe that the burden of proof should always be on the government or plaintiff, not the speaker. As long as harm is not incited, the defendant should not have to prove the worth of their sexual expression. The subjective nature of this category of speech, as well as others, does not provide a firm basis for restricting its creation and distribution. Along with obscenity law, I also find the SLAPS clause as outlined in Miller v California to be very frustrating. I don’t think that artistic value can be judged in a courtroom. Again, the subjective nature of artistic expression is too broad and I do not agree with the notion that a court can rule one piece of art worthwhile and another worthless. In the end, the only way in which I would restrict sexual expression is when it incites harm, i.e. directly causes rape or other undesired violence toward others.

The category of speech I found most troublesome is child pornography. This is the only case I have encountered thus far in which I would impose tight restrictions on speech. In reviewing cases like Sally Mann’s photography of her children and the movie Tin Drum, I find myself very bothered by the presence of such speech. In the case of Sally Mann, I wonder about her artistic process and her children’s ability to refuse to be part of her work and I also wonder how they will perceive their photos in the future. Like the harm theory outlined in New York v Ferber, were her children exploited in the making of the images and will they be shamed by their continuing presence? In the case of the movie Tin Drum, I found myself very bothered by the actual ages of the actors in the film – the 11 year-old boy engaging in sexual acts with a 24 year-old actress really pushed me over the edge. This urged me to establish an age precedent for sexual expression. I would argue that if the actual age of a child in a pornographic depiction is under 14, the image should be restricted. If the adolescent is 14 or older, it should be protected. This precedent, I believe would allow for the protection of the current phenomenon of “sexting,” a trend in which adolescents have been exploring their own sexuality by snapping sexual pictures of themselves and sending them to friends. Because 14 is the age at which young people begin exploring their sexual identities, I do not believe such acts should be criminalized. The notion that kids are being registered as sex offenders for exchanging pornographic pictures with their friends seems like nonsense to me.

I can honestly say that this has been one of the most interesting and engaging courses of my undergraduate career. Not only have I learned about the vast theories of free speech, but I have learned to evaluate Supreme Court decisions based on my learning and own personal beliefs, which has guided me to establish my own free speech theory. The freedom of expression, I believe, is as fundamental as religious freedom. Like the freedom to declare and practice our own faith, our ability to express ourselves is a fundamental human right that promotes both the marketplace of ideas theory outlined by John Stuart Mill and the individual liberty theory of speech established by Edwin Baker. Except in the case of child pornography, I am willing to give speech ultimate protection under the precedent set in Brandenburg v Ohio. I believe that everyone should be free to express themselves in the means most appropriate to their own lives and to employ their own self-determination to make decisions dealing with speech.

Overturning USA v Stevens and 18 U.S.C. § 48

In reviewing the ruling in United States of America v. Robert J. Stevens, I have decided to overturn the law passed by Congress. The statute in question, 18 U.S.C. § 48 states: (a) Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both; and (b) This restriction does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. The case of USA v Stevens deals with the issue of the production and sale of dog-fighting videos. Stevens himself did not participate in the facilitation of the dog fights in his videos, but simply compiled footage of historical dogfights that took place both in the United States, where dogfighting is illegal and in Japan, where it is not.

Originally, 18 U.S.C. § 48 was established to halt the phenomena known as crush videos. Crush videos became more prevalent with the growth of the internet and congress wanted to criminalize the sale and possession of such videos in hopes of eradicating the market. However, in formulating the statute targeting crush videos, Congress created a law that is overly broad and has created an entirely new category of unprotected speech. More than two decades after the last category of unprotected speech was declared, Congress has established a new one. This new category joins the likes of fighting words (Chaplinsky v New Hampshire), speech that imminently incites illegal activity (Brandenburg v Ohio) and child pornography restrictions (NY v Ferber). In upholding this new category of unprotected speech, the government claims that they are directly impeding the actual act of animal cruelty by criminalizing its depiction. In seeking to refute their claim that the law upheld in USA v Stevens is constitutional, we will look at philosophical and doctrinal issues at hand when banning depictions of animal cruelty, as well as the level of harm that should be applied and the level of scrutiny required to be met by the government.

In defense of 18 U.S.C. § 48, the court employs the help of the landmark case, Chaplinsky v New Hampshire in which two categories of speech were established: “ (1) That which has social value as a step to truth; and (2) That which has no social value as a step to truth.” (p 170, Freedom of Speech in the Unites States). This ruling is directly taken from the philosophy of Zechariah Chafee and is later described as the two-level system of free speech that distinguishes between worthwhile and worthless expression. Unlike Congress in this case, I would not employ the help of Chafee. Rather, I would turn to Edwin Baker and his “Liberty Theory.” The Liberty theory of the freedom of expression as described by Baker argues for the importance of self-realization and self-determination (p441). This notion of self-determination I think is very important in the case of animal cruelty. In applying Baker’s theory I do not attempt to defend the activity of being cruel to animals, and neither would Baker (he does not condone violent expression) but the freedom to trade and possess depictions of it is not, in my mind, directly perpetuating the act nor should it be subject to government restriction. It should not be left up to the government to define worthwhile and worthless speech, but it should be at the liberty of each individual to decide that for him or herself insomuch as it does not incite harm to others.

In defense of their ruling in the case of depictions of animal cruelty, Congress grounds their claims in New York v Ferber, the case ruling which made it illegal to create, sell and possess child pornography. In analyzing the connections between animal cruelty and child pornography, it is clear that the ruling in Ferber do not hold relevance in this new statute. The first argument is that like the issue of child pornography, the prevention of animal cruelty is a compelling government interest and therefore would survive strict scrutiny. However, as argued by the dissenters in USA v Stevens, “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.” There have already been laws enacted in all 50 states that target animal cruelty and it is not clear that criminalizing depictions of animal cruelty would eradicate the actual crime in the same way that Ferber prevents the exploitation and harm done to children from child pornography.

Secondly, although it is clear that animals should be treated kindly, it is extremely unlikely that they suffer continuously from having the disputed images floating around. Children, on the other hand can and do suffer continuously from depictions of child pornography.

Thirdly, there is no evidence supporting the argument that criminalizing the depiction of animal cruelty will decrease “production” and ultimately halt the occurrence of cruelty to animals. Many people who commit such crimes do not do so to make money by selling depictions of their actions. Cruelty to animals is something that will continue regardless and depictions of such activity is more commonly repulsive to its viewers than a motive for future infringements of the law. In other words, I don’t think the simple viewing of animal cruelty does harm, it is the action itself, which is already illegal.

Finally, the exceptions clause is extremely contradictory to the law itself. If the purpose of criminalizing depictions of animal cruelty is truly seeking to stop the actual action of animal cruelty, then why is it okay to depict this cruelty in some cases? Ferber does not include a SLAPS clause, so if these two cases are so similar, then why should the restrictions on animal cruelty include one? This inclusion of a SLAPS clause is similar to the precedent established in Miller v California and has nothing to do with Ferber, which Congress claims as the basis of this new category of unprotected speech.

A side-note I would like Congress to consider is the relation between animal cruelty and violence on television. One of the arguments given by the court is that depictions of animal cruelty inspire others to act in the same way and that violence to animals ignites the tendency to commit violent crimes against humans. However, if that is the case, why would it be any more acceptable to depict violence among humans on television – wouldn’t that inspire illegal violent activity in the same way?

In seeking to restrict speech pertaining to animal cruelty, I believe the government should have to meet strict scrutiny. Because I do not believe the government has an actual compelling interest in restricting the depiction of animal cruelty, I do not think they will meet this burden of proof. Their interest is not compelling because in restricting this kind of speech, I do not believe acts of animal cruelty will shrink in number.

In the end, I would overturn 18 U.S.C. § 48 on the terms that it does not concern a compelling government interest in the same way that issues of child pornography do. Also, if we look at the defense arguments, we see that the law itself is overly broad in that it could criminalize the depiction of things like pictures taken while hunting animals. The law is not refined in its original efforts to solely dry up the market for crush videos. If the government wanted to stop these specific videos, why not specifically say so? Instead, they have created an entirely new, overbroad category of unprotected speech that threatens the liberty of individuals who have committed no crime themselves, while doing nothing to prevent the actual illegal act of animal cruelty. In altering this statute, I would employ the harm theory of incitement made precedent in Brandenburg v Ohio. Only if the speech in question imminently and immediately causes harm to individuals (humans or animals) should it be restricted by the government.

Jesus Castillo jr. v Texas

The 2000 case of Jesus Castillo is the topic of this analysis. The case of Jesus A. Castillo, jr. v Texas arose when Castillo, owner of the store Keith’s Comics, was convicted for misdemeanor for selling sexually explicit comic books. After receiving a complaint from a citizen, an undercover detective from the Dallas Police Department entered the “adult only” section to seek out proof that the complaint of sexually explicit content was warranted. Low and behold, he found a comic book titled “Demon Beast Invasion, The Fallen,” which depicted a nude female on the cover, along with a warning that it was not for people under the age of 18. Even though the explicit material was confined to an “adult only” section of the store where children were not permitted, the court deemed it important to consider the fact that the store was located in “a neighborhood of residences, businesses, and an elementary school.” (see case report by clicking on previous hyperlink). In the final ruling of the case, Castillo was convicted. According to the article “Arts and first amendment” by James McWilliams, “Castillo was sentenced to 180 days in jail, a year of probation and a $4,000 fine, after the prosecutor in the case told the jury, "I don't care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books … are for kids." Under the assumed standard that comic books are a medium strictly for children, they should be spared sexually-explicit content. This assumption by the court especially bothers me. Is it right for someone to determine what mediums can or cannot be used by certain groups of people?

In reviewing this case, I would completely disagree with the decision issued by the court. I would not have convicted nor proposed future restrictions on Castillo’s speech. At one instance in the ruling rationale, it seems as though the court is relying on the distant standard set in Roth v US. In this 1957 case, the notion of local standards is enacted. The court argues that speech should be considered obscene if the average person finds it appeals to prurient interests and has no social value. In the case of Castillo, it is determined that these comic books are “patently offensive to the average Texan's community standards.” This whole notion of community standards is conflicting for me. How can one person or even one group of people determine the values for an entire community? This, to me violates the United States’ standard of freedom of expression. By establishing a ruling majority value as precedent, all individuals who do not fall within that boundary are silenced.

When looking at the ruling of this case in connection to the more recent precedent set in Miller v California, we realize that something has been left out. In the case of Miller v California, Justice Brennan determined that all sexual speech should be protected, as long as it does not involve a captive audience or children. In the case of Castillo, he had established a clear distinction between the “adult only” section and the rest of his store. In order to find the sexually explicit comic books in the first place, one must be a consenting adult. The undercover detective was not forced to locate, look at or purchase the comic book, but voluntarily did so. I believe that Castillo did all that was required of him to prevent the sexually explicit material from landing in the hands of a child or even of adults who did not wish to be exposed to it.

Another argument proposed in the case is that the comic book in question lacked “serious literary, artistic, political, or scientific value.” The notion of judging a work based on artistic value really bothers me. Who’s right is it to judge another’s artistic expression? Generally speaking, there is an audience for every kind of expression imaginable. I strongly disagree with the belief that artistic expression that does not fall within the boundaries of accepted interest should be suppressed. I think that in these kind of cases, this notion of artistic value should be thrown out entirely because it is no one’s right to judge another’s expression for validity.

In reviewing this case and others that deal with issues of obscene speech, I find myself leading towards a harm principle. Although large portions of society may not agree with nor want to expose themselves to obscene material, I do not think that it should be restricted on the basis of communal standards or artistic value. The truth is that sexuality is a huge part of human identity whether we want to acknowledge that fact or not. When we look to our historical roots in Greek and Roman society, we see that sexuality was often celebrated in a more straightforward manner than it is today. Currently, I think the American perspective on sexuality is oppressive to the natural human desire and need to express ourselves. In looking to historical perspectives and even in comparing the societal standards on sex in the United States to other cultures around the world, sex is seen as something shameful and something to keep hidden. This perspective isn’t necessarily wrong, but I think we need to understand that it is not absolute. The state of restrictions on obscenity in the United States at this moment bothers me because it entirely contradicts our advancements in the area of free speech which we hold so highly. Perhaps a harm principle would be more liberating and just. As I learned in our last class, harm has never been proven in a case of obscene speech. This is a standard I would like to investigate further because I think it would be the most just form of restricting obscene speech. If the speech in question is not directly causing harm to someone, then I don’t think it should be restricted. As of right now, the United States restriction of obscene speech stands out like a sore thumb in comparison to its views on freedom of expression and I think it needs to be reviewed and improved to reach those high standards of individual liberty of expression.