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.

---

[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.

---

[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.

---

[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. .