Mr. Steven

In the case of USA v. Stevens I argue that the law should be overturned and Sullivan should not face any criminal charges. I argue that the charges brought against Mr. Stevens are violating his rights of free speech that are guaranteed and protected by the first amendment. I will be using the philosophical works of Emerson as well as the harm theory to support my argument. As a case precedent I believe the precedent passed down from the case of New York v Ferber should be considered. I will also use the USA v Vick, and the respect theory to strengthen my argument of why the law should be overturned in the New York v. Stevens case.

Let us first start with some background of the case. Mr. Stevens was convicted of creating and selling movies that portrayed animal cruelty. One of the tapes that was created was showing a dog and his training, which included attacking a wild hog, while the other two tapes where tapes showing pit bulls engaging in dog fighting.[1] Stevens was not even depicted in these films. He was simply selling them, not partaking in the acts that some view as animal cruelty or inhumane.

Right away it becomes clear to me that Mr. Stevens should have his videotapes be protected. Even though the actions that are depicted in the video can be seen by some as animal cruelty, it is not the same as him holding dogfights in his back yard. Unlike other cases where these fights where actually held by the individual, USA v Vick, Mr. Stevens was simply selling the tapes. In the USA v Vick case, Michael Vick was convicted of running a dog-fighting ring out of his home in Georgia. Vick admitted to knowing that the fights were taking place, and he also admitted to killing some of the dogs himself.[2] In this case Mr. Vick was charged and convicted, unlike the Stevens case Mr. Vick took part in these acts. If we use the Vick case as a precedent and decide to overturn the law banning the sell of the material due to the fact that Mr. Stevens did not commit the acts portrayed in his videos, I believe that the court would be taking a step in the right direction.

Another case that we can look at to understand why this law should not be upheld is the New York v Ferber case. I do not want to look at this case as a whole, but specifically target one thing that came from this case. During the Stevens case, the prosecutors tried to make an analogy to the Ferber case. This analogy was that the animals in these films are being harmed and suffer shame just like the children from the Ferber case. Ten of the courts judges struck down this analogy right away, saying that the animals do not feel the shame that children would, and there fore this analogy holds no value. I argue that this is an important distinction to point out because it shows that the court does not place the life of an animal on the same level as a child. I agree with this, the animals being depicted in the films sold by Mr. Stevens where not shamed in any way and will not feel hurt as a result from these films in the future.

If we step back and look at this case from a harm theory or respect theory point of view, it becomes apparent that Mr. Stevens has done nothing wrong and does not deserve the charges he faces. According to the harm theory speech should be protected as long as the speech does not have the potential to lead to harm. It is clear that these films sold by Mr. Stevens have no potential to lead to harm to any individual person or groups of people. This theory supports my argument that the law should not be upheld. In agreement with this theory is the respect theory. The respect theory argues that speech should be protected as long as it does not degrade a group of people. In no way do the films sold by Mr. Stevens degrade a group of people. Either of these theories can be used to argue that the law should be overturned.

As I mentioned earlier in this post I believe that the approach taken by Emerson and his philosophical views would argue that this law should be overturned. Emerson introduced an expression action theory that he concluded should be used to decide weather speech should be protected or not.[3] Emerson states that any expression should be protected, but when that expression turns to instruction or action it should not be protected. This philosophical work should be used when looking at the New York v Stevens case because it would argue that the films are an expression and not action or instruction. The films are not a direct action being carried out by Mr. Stevens and are not explicit instructions directing anyone to carry out the same acts being depicted in the videos.

In conclusion I do not feel that Mr. Stevens should be charged. Unlike the USA v. Vick case that I mentioned, Mr. Stevens had no actual involvement in what some might consider to be animal cruelty that was depicted in the films he was selling. As I have noted, according to both the harm and respect theories Mr. Stevens has done nothing wrong as these films do not harm or degrade any people or groups. Emerson’s expression action theory supports my argument and would protect these films and Mr. Steven right to sell them. Once again I will state that I argue that the law should be overturned in the USA v. Stevens case.

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[1] "USA v Stevens." USA Courts (2007): n. pag. Web. 12 Mar 2010. .

[2] "USA v Vick." Find Law.com. N.p., 24/08/2007. Web. 13 Mar 2010. .

[3] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 438. Print.

Synth

First off I would like to start off by saying that I am someone who argues that freedom of speech is something that should be protected everywhere. I know that this is not currently the case in many places around the globe, but I believe that it is more than a right guaranteed by the first amendment, I feel that it is a human right that everyone should have. As I have stated time after time in these posts, I am a Emerson follower with a little Chaffee mixed in here and there. As for the defenses that I find to be most important when dealing with cases of free speech I have consistently applied the harm theory as well as the respect theory. There are numerous cases that I like to turn to as a precedent for certain types of speech and weather or not it should be protected. These cases are Chaplinsky v NH, Virginia v Black, and Cohen v California. Besides the cases I like to use, I agree with the United States when they place the burden of proof on the prosecutor, not the speaker.

One of the cases that I like to use is the case of Cohen v California. In this case Mr. Cohen was arrested due to wearing a coat the read, “Fuck the Draft!”[1] This is a key precedent to look at when determining weather speech should be protected in cases that deal with emotions being expressed. Mr. Cohen was expressing his emotions about the draft and how he felt towards it. I like to use this case as a precedent because it shows the difference between action and expression. If he would have made actions that could cause harm to people then I would not have used this case, but since he was just wearing a coat that expressed how he felt I argue that this is a case that must receive some attention when determining if speech should be protected.

Similar to Cohen v California is the case of Chaplinsky v HH. Once again this is a case that I believe should be reviewed when trying to protect free speech. Chaplinsky like Cohen was expressing how he felt; the only difference in this case is that Mr. Chaplinsky expressed his feelings with words. I like to use this case for a few reasons; this is the case where the precedent of fighting words came about. This is a landmark case as it offers solid evidence to protecting speech even if it can upset some people.

The final case that I often use to argue weather a law or ruling should be struck down to protect first amendment rights is Virginia v Black. This was a case that looked at cross burnings and weather or not they should be protected. The ruling passed down from this case was that a cross burning is protected if it is not meant to directly intimidate any one person or groups of people. I particularly like this ruling because some groups in America find a cross burning to be a means of self-expression. I do not see a problem with this self-expression as long as it is done on private property and is not directly meant to intimidate anyone.

In case you have not been able to tell by the cases that I have chosen to use when I argue for protection of free speech, I am a big supporter of Emerson and his expression action theory. Emerson’s theory states that all expression should be protected by the first amendment, but once that expression turns to action and or instruction it shall no longer be protected.[2] In each of the three cases that I typically use, it is easy to see that they all can be argued from Emerson’s point of view. The jacket Mr. Cohen wore was a mere expression of how he was feeling at the time of the draft. The words said by Mr. Chaplinsky where not directions to cause harm, they where merely his feelings being expressed. Similar to those cases, the cross burnings in Virginia in the case of Virginia v Black where not meant as racial intimidation, but as a self-expression.

Besides being a firm believer in Emerson, I also argue that there are two main theories that should always be examined when dealing with a freedom of speech case. These theories are the respect theory and the harm theory. If a case such as Cohen v California, comes to court either of these theories can be used and will argue that he has done nothing wrong. In that particular case, Cohen did not degrade any specific group of people, nor did his speech have the potential to lead to harm to any one person or groups of people.

The final piece that I find to be important is where the burden of proof is placed. I like the current US ruling, that the burden of proof is almost always on the prosecutor and not the speaker. This is very important as we have seen over history, for example the Mclibel case shows us why the burden must not be place on the speaker. In this case McDonalds was virtually suing everyone and anyone that had something bad to say about them, and with the libel laws of Britain it was east to do so. Since the burden of proof was placed upon the speaker almost all cases where settled quickly. In the United States the burden is not placed on the speaker. This is key in order to have freedom of speech. If we did not follow this, every time anything was said in a paper or on the TV someone would sue. But since that person who is suing has to prove that the words spoken are false it is much more unlikely for these cases to be carried through the court system.

In conclusion, I have and will always support the philosophical work done by Emerson. I argue that his expression action theory can be applied to almost any case that deals with freedom of speech. The cases that I have named in this posting are ones that I believe provide substantial grounds for the protection of our first amendment rights. So far I will and have sided with any case that I believe to be an expression of ones feeling and self, I do not however argue that the actions and directions of these expressions that can lead to harm should be protected.

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[1] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.

[2] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 438. Print.

Castillo v California

The case of Texas v Castillo is a rather interesting case that deserves to be looked at. A clerk at a comic book shop was arrested and charged with misdemeanors for selling obscene material, even though it was sold to an adult and kept in the adult only section of the comic store.[1] A undercover police officer made the arrest after seeing the comics in the adult section of the comic store. The prosecutors went on to conclude that comic books are made for children and therefore are promoting obscene speech, even if the book is only sold to adults. I do not agree with the ruling of the court, I argue that there are no grounds for charging Castillo with misdemeanors. I also do not agree with the court ruling that comic books are for a medium used only to reach kids. I will use the case of Miller v California as well as the philosophical work of Thomas Emerson to argue my point.

First off the type of speech that is trying to be banned here is speech that is viewed as “obscene.” Since the charges against Castillo are coming from the grounds that he was selling obscene material, we need to get a concrete understanding of what this means. In order to do so, we first need a solid definition of the word obscene. According to dictionary.com, obscene is defined as the following, “offensive to morality or decency, indecent, depraved, obscene language, causing uncontrolled sexual desire, abominable, disgusting; repulsive.”[2] According to this definition the material that was sold may or may not be viewed as obscene. The comic book was intended for a certain audience, which of whom obviously is not offended in a moral way if they are purchasing such comic books. There is no room to limit the speech here based off the idea that the comic books are being considered obscene material.

If we use the precedent that was passed in the Miller v California case it is also not clear whether this is a case that deserves any type of conviction. In the Miller v California case, Mr. Miller was being sued on very similar charges as Castillo. Miller operated a mail order porn service, and was sending out flyers to advertise his business. Certain individual who had received these flyers without wanting them became offended. The court used various tests to see if Miller was indeed guilty of the misdemeanor charges that he was facing. The court ruled that he was guilty of the charges, but re defined the test for obscenity. I argue that unlike Miller, Castillo was not soliciting the sale of obscene material; rather he had the material located in a place that only someone specifically looking to buy it would see it. Based on this I would have to argue that Castillo should be acquitted of any charges. According to the court while handing down the ruling for the Miller v California case, the test for obscenity was re-written as follows, “The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[3] Looking at this revamped definition handed down by the court, Castillo should not be charged. It can and should be argued that the comic book definitely has literary and artistic value, this value may not be seen equally amongst all people but there is with out a doubt a large population of people that would argue for the literary and artistic value of such comics.

Moving past the precedent of the case we can now begin to argue the philosophical works that should be used when reviewing this case. Looking at the work done by Thomas Emerson we can see that he would argue for the protection of the comic book. According to Thomas Emerson, “Freedom of expression includes the right to hear the opinions of others, the right to inquire, reasonable access to information, and the rights of assembly and association.”[4] According to this theory all expressions that do not turn into actions should have absolute protection. In the case of Castillo and the comics he was arrested for selling, he would be protected. He is doing exactly what Emerson has laid out as expression. Actually he is not even the one doing the expression, the artist who created the comic book is expressing himself artistically, Castillo is doing nothing more than supplying items that are wanted by a certain community of people. In accordance to Emerson, Castillo deserves full protection for selling such comic books to those people that want them.

The ruling in the Castillo v California case also decided that comic books are made for kids and are a medium on which to reach children only, similar to toys. This is another idea that I cannot leave alone. We don’t even have to argue to hard to uncover the fact that comic books can be easily targeted not only to kids but to adults too. Looking back through history we can see numerous occasions where comic books have been intended for adult audiences, and where they have even influenced adult audiences. Today around 70% of comic book readers are over the age of 18.[5] Comics have had influences on television shows as well as political influences as well. Comic books are not just pictures, they tell stories and keep alive parts of culture. Anything that can affect the culture of an entire country must be doing more than just reaching children.

In conclusion I argue that in the case of Castillo v California, Mr. Castillo deserves full protection to sell his comic books in his adult only section like he has been. Using the expression action theory it is easy to see that he is doing nothing wrong. Also with the constant debates about what is considered obscene and what isn’t it would appear that if there is a market for such material than it is not seen as obscene to everyone.

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[1] McWilliams, James. "First Amendment Center." Comic Books. 12,Feb, 2010. Web. 1 Mar 2010. .

[2] "Dictionary and Reference." 08, Mar, 2009. dictionary.com, Web. 1 Mar 2010. .

[3] "Miler v California." OYEZ. 05, May, 2007. Web. 1 Mar 2010. .

[4] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 438. Print.

[5] McWilliams, James. "First Amendment Center." Comic Books. 12,Feb, 2010. Web. 1 Mar 2010. .

Westboro Baptist Churh

            In the case of the Westboro Baptist Church from Topeka, Kansas I argue that the protests and actions carried out by them are protected under the first amendment. The people of this church who are mainly relatives of the minister have strong feelings of disgust for homosexuals. Recently they have begun to target their campaign in a new way. They are now holding protests at the funerals for soldiers who have died in Iraq and Afghanistan. They are saying that the reason people are dying is because God is upset with America and the way we are living, i.e. homosexuals. To argue my case I will use Emerson’s expression action theory, and the court cases of Cohen vs. California as well as Virginia vs. Black.

            The type of speech that is being targeted here is one that should be protected. The members of this group are expressing their disgust and what they believe to be divine reasoning for so many deaths. Since 1991 the Westboro Baptist Church has led more than 41,226 peaceful protests. [1] This type of speech can be rooted back to the works of Emerson when he argued for the absolute protection of expression in his expression action theory. Emerson’s expression action theory states that, “freedom of expression includes the right to hear the opinions of others, the right to inquire, reasonable access to information, and the rights of assembly and association.”[2] According to this theory all expressions that do not turn into actions should have absolute protection. In the case of Westboro Baptist Church they are doing exactly what Emerson has laid out as expression. According to Emerson they are given the right to hold the protests that they do and say the things they say, as they are expressions.

            If we continue on with the expression action theory then we can see that the speech being practiced by these people should be protected. This type of speech warrants full protection until it becomes action. Emerson’s theory tells us that action is when speech becomes more than persuasion; it is when it becomes instructions and preparations. At the point of this Church beginning to give instructions and preparations for violence then their speech would not be protected, as it is no longer expression but now is action. By looking at the expression action theory it is clear that this group has not begun to act, they are expressing themselves and therefore should have full protection to continue protesting.

            The key precedents that should be looked at when viewing this case are the precedents that where passed down from the Cohen vs. California case and the Virginia vs. Black case.  Examining the Cohen vs. California case we can see that expression was protected. The protected speech in this case was a mans jacket that read, “Fuck the Draft.”[3] Although this case is over an article of clothing, it is still considered expression just as the Westboro Church’s protest rallies are. In this case the court ruled that,” Shocking language that is not legally obscene and not directed at an individual hearer in such a way as to provoke a person to violence is protected by the Constitution from abridgment by the states.”[4] The words and signs that are shouted by the member of the Westboro Baptist Church are protected under this precedent. Their words are not directly aimed at a single person and are not targeted at people in a way to incite violence. Not only are their words not directly aimed at any one person, they are words of emotions that are being expressed. According to Justice Harlan and the majority opinion in the Cohen vs. California case, “We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”[5] As we can see from the Cohen vs. California case emotional speech cannot be restrained or restricted. Using this precedent the member of the Westboro Baptist Church would be protected.

            A more recent case whose precedent would protect these people as well is the case of Virginia vs. Black.  This case resulted with the precedent that as long as the speech does not directly intimidate anyone person or is a true threat then it is protected. In this case Justice Sandra Day O’Connor describes true threats as, “Statements where speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.”[6] Using this precedent would also protect the people of the Westboro Baptist Church. Under the ruling passed down from the Virginia vs. Black case speech such as the kind being used by the Westboro Church should be protected, as it is not posing a true threat to anyone or being used as direct intimidation.

            Using the expression action theory to investigate this case with the Westboro Church, it is apparent that they are simply expressing their views and opinions. They are not giving instructions or preparations to harm any person or groups of people. Cohen vs. California offers a solid precedent to apply to this case. After applying this precedent it is obvious that these people should be protected, as the Cohen vs. California case ruled that speech which is expressing emmotions, such as those felt by the people at the Westboro Baptist Church is protected under the first amendment. The final precedent that was applied came from the Virginia vs. Black case. This precedent also leads to the conclusion that the expressive speech used by the Westboro Baptist Church is protected, seeing how it does not present a true threat to anyone and is not directed at any one person/group in a direct act of intimidation. As a conclusion to this case, using the review process that I did, which included both philosophical and doctrinal grounding, I find without a doubt that their speech is granted full protection under the Constitution.

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[1] "Welcome, Depraved son of Adam." Westboro Baptist Church Website. 2010. Web. 31 Jan 2010. .

[2] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 438. Print.

[3] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.

[4] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.

[5] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.

[6]"Virginia vs. Black." Find Law.com. 07 Mar 2003. Web. 29 Jan 2010. .

Blog 1: Free Speech and the Mohammed Cartoon

 

            In the case of the Muhammad cartoon being published in the Danish newspaper I argue that the artist, Kurt Westergaard, is not responsible for the actions that his drawing caused, and therefore is protected under freedom of speech. The artwork that was done was done for a particular situation and for a particular audience. To further argue my stance I will address the Universal Declaration of Human Rights, as well as the case of Burstry vs. Wilson.

As we have all learned through our time as communication theory enthusiasts, the main rule in communication is to tailor your message to your targeted audience. The drawing that was done was meant for a particular audience and therefore was tailored to get as much attention and recognition from that audience as possible. As of now only 3.9% of the population in Denmark are Muslims.[1]As stated by Westergaard in his numerous interviews since the controversy, he continues to say that it was just another day at the office for him, he went about the drawing the same way he has for years, creating satire that will catch the attention of its intended audience. Since this piece of artwork was conceived to be published in a local magazine, Westergaard did nothing wrong. He had no intention of it getting out around the World. His purpose was for the local population, there was no way he could have predicted the actions and responses that came from groups around the globe.

Taking a look at the Universal Declaration of Human Rights, we can see that freedom of speech is something that becomes a touchy subject. In certain places it appears that we are free to do and say what we want, and in others it is not so clear. If we take a look at Article 29 we can begin to understand where this line is supposed to be drawn. According to this article there are two ways in which most people can and will interpret freedom of speech. One way is that if the speech/ideas created harm or endanger others in a physical way, they are not protected. The other being is the speech/ideas harm or infringe upon others rights emotionally or mentally, they are not protected. In this case we need to look at the facts. Westergaard created this piece for his own local audience; here it would not harm anyone in a physical way. The harm that it did cause in a physical way was to groups around the World who he never intended to receive the cartoon in the first place. His intention during the conceptualization process of this piece was not to put Muslims in harm in any way. There was no way for him to foresee the actions and dangers that would follow as a result. As mentioned in his interview with Denmark Radio TV in 2008, different Muslim groups responded in their own ways. Not all groups went to the streets and began to riot and burn flags. Since the leaders of the countries around the World with large Muslim populations could not predict how their people would act, how was a man from Denmark who was just doing his job supposed to know?

Ok, so now lets take a look at the other part of Article 29 where people interpret it to mean that and speech/idea that harms or infringes upon others rights emotionally or mentally is not protected. Once again I have to argue the same point here. Westergaard had no intention of hurting anyone mentally or physically. The tragedies of loosing 100 lives around the World cannot be held against him, as they should be held against the leaders and police/authority of the countries they took place in.

            Since the cartoon was published, nations all around the World have been saying that the artwork was blasphemy and therefore Westergaard should be held accountable for his actions. Pertaining to the United States and the court case of Burstry vs. Wilson we can see that blasphemy is not something that is nor should be punishable in all countries. Until the early 1950’s blasphemy was punishable in the United States. In 1950 New York banned the Italian film, The Miracle, as the plot of the film was believed to be blasphemy due largely to the fact that a woman claimed she was baring the child of St. Joseph.[2] A court ruling declared that blasphemy as, in historical terms, meant to literally go into a Church or place of worship and physical desecrate holy objects or religious artifacts. The court also upheld that it is not the responsibility of the State to deal with such matters, as they would be infringing upon the First Amendment rights.

            This case was important for a few reasons, it affirmed that the State has no place to deem something sacrilegious or blasphemy. It also affirmed that the State must stay separate from the Church. This does not hold true in all nations. But for the ones in which it does, such as Denmark, there can be no restrictions placed on religious art/speech. If we use this case to look at the cartoon controversy, we can see that Westergaard should not be responsible for the actions of those around the World, since his work created in its original country should not be labeled as “blasphemy.”

            The deaths that occurred as a result of the Mohammed cartoon are without a doubt a sad tragedy. But the blood from these deaths should not be placed upon the hands of Westergaard. As I have illustrated through this article he is protected under freedom of speech to create these types of cartoons. Although people disagree with his work, he has done nothing wrong, he simply did his job to the best of his ability and obviously did a very good job at it since you are reading my article about his situation. The argument about what freedom of speech protects will go on forever, as long as there is one document that tries to encompass all the nations and religions around the World within a single definition there will be controversy and disagreement.

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[1] "Facts about Muslims in Denmark." Ministry of Foreign Affairs of Denmark. 06/03/2008. Ministry of Foreign Affairs of Denmark, Web. 14 Jan 2010. .

[2] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 124-125. Print.

Hi

Just seeing if this works