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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