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.