Shelley N. Griffin, Strategic Communications undergraduate at Seattle University, is a student of the First Amendment whose stance on freedom of expression closely follows that of philosophers Thomas I. Emerson and John Stuart Mill. The idea of expression as a means to self-fulfillment and discovery of truth shape her opinions of what speech warrants First Amendment protection and what is punishable by law. Griffin advocates for the protection of the individual over the group majority as well as the rights of the speaker over those of the audience. She argues against the use of suspect classes and finds the creation of subcategories of speech imperative to the process of protecting expression rights.
Thomas Emerson’s Expression-Action Theory is continually referenced by Griffin in her reasoning for or against the protection of speech. Her belief that expression should always be allowed and that only speech that imminently incites physical violence mirrors Emerson’s. By regularly citing Emerson, it is apparent that Griffin believes that the protection of expression of self, advocated for so avidly during the founding of the United States, is based in the promotion of self-fulfillment. Through this, Griffin often times vies for a strict burden of proof, for numbering among her most pressing concerns is the possibility that the government will start down a slippery slope of suppressing speech that should be protected by the First Amendment. Thomas Emerson argues that in order to create democratically informed decisions the employment of the Expression-Action Theory is a must. For if expression is suppressed by government, the truth will never be discovered.
John Stuart Mill also places great importance on the freedom to search for truth through expression. Griffin’s employment of Mill’s “marketplace of ideas”, although not as frequent as her reference to Emerson, is another telling sign that protection of expression in the hopes of promoting truth is at the top of her list. John Stuart Mill’s harm principle, which argues speech should only be suppressed in order to prevent harm, also holds weight in the opinions of Shelley Griffin. As stated by Mill himself, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” This, being quite similar to Emerson’s Expression-Action Theory, again backs Griffin’s use of strict scrutiny when assessing the verdicts of the court.
The foundation of Mill’s philosophies also influence Griffin’s assertion that precedence should be given to the protection of the rights of the individual over those of the group majority when the need arises. Griffin believes it is important to determine the difference between offending the majority and physically hurting the majority. So long as the speech does not either become an action or incite an imminent breach of peace, it is the responsibility of the government to protect the speaker. Turning to Mill’s prominently cited quote, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” (Tedford, 13) As Griffin has noted, this does not give government the right to forfeit the majority’s rights in lieu of protecting the individual, however, the primary focus should be on the individual when the two are at odds. Looking to the Universal Declaration of Human Rights for further backing to her logic, Griffin regularly calls attention to Article 19 which states, “Everyone has a right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” In its similarity to Emerson’s philosophies, her reference to it only adds to her convictions.
Shelley Griffin almost always endorses the protection of the speaker. Through her reference to the three ideas that form the base of Mill’s philosophy, she cites the need for government to allow the expression and testing of new and unconventional ideas so that the truth or falsity of the statements can be discovered. Mill’s three ideas are as follows: (1) the censored idea may be true and the accepted opinion may be in error, (2) even truth needs to be tested, and (3) there is likely some truth in all opinions. (Tedford, 432) However Griffin allows for two exceptions. The first, as previously mentioned, is when the audience is provoked to anger by the words of the speaker resulting in immediate and imminent violence by the audience member. The second exception is in the case of child pornography. Based on the duality of the fact that children cannot legally consent to participate in the filming or to the distribution of the material, Griffin argues that the creation and distribution of child pornography is not protected by the First Amendment and is therefore punishable. She has stated her consensus with the U.S. Supreme Court’s decision in the 1982 case New York v Ferber. In its ruling the court decided that a state can legally prohibit child pornography without it first being declared obscene through SLAPS value, as it was defined in the Miller v California case of 1973.
Griffin does not go so far as to warrant the punishment of filming or distributing videos depicting animal cruelty nor does she advocate for the government involvement in the sale of violent video games to children without it first being declared obscene through the use of SLAPS value. While both of these cases also deal with subjects that cannot legally consent, she determines the imminent danger posed to children through child pornography is of such a high priority that it deserves exception. She argues that while crush videos depicting animal cruelty do not merit the protection of the First Amendment, considering the difference between the life of an animal and the life of a human, the resulting restrictions of speech would not be worth forfeiting. As for the government involvement in the sale of violent video games, Griffin calls attention to Emerson’s Expression-Action Theory once again. She notes that as video games merely depict the violence, they are classified as expression, not action.
When assessing the equality of speakers Griffin argues that, upon the expression of any offensive or harmful speech, every citizen of the United States over the age of 18 should be held to the same standard. The use of suspect classes by the courts for creating exceptions to laws regarding freedom of expression and First Amendment rights is counterintuitive to her logic and reasoning. As it is stated in Article 2 of the Universal Declaration of Human Rights, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” She argues that unless the expression becomes action or directly causes a physical reaction from the audience, the expression should be protected. This has always been a hard issues for Griffin to stand by for she is not a fan of abusive or offensive language whether it be directed at either an individual minority or the group majority. However, in order to keep true to those philosophies that form her basis of reasoning, i.e. Emerson’s Expression-Action Theory, Mill’s Harm Theory, Article 19 of the UDHR, she must continually encourage the expression of all opinions through all communication mediums. For if one idea is suppressed, there is no reason that all subsequent ideas could no be suppressed as well.
Griffin finds it imperative to define different types of speech by creating subcategories into which each case falls in order to determine whether or not the speaker should be allowed First Amendment protection. The following are excerpts from the writings of Shelley N Griffin during her time as a student of the First Amendment and beyond. Although throughout her time as a First Amendment scholar she explored a multitude of different subcategories, those discussed here are the ones most strongly regarded and often referenced by Griffin. They describe her reasoning behind her decisions to punish or protect speech specifically related to the subcategory in question. Throughout her discussions on the subcategories of speech, Griffin refers back to her guiding principles laid out by Thomas Emerson and John Stuart Mill.
Here Griffin discusses her views on fighting words by relating them to Cohen v California:
In addressing the issue of fighting words I agree with the U.S. Supreme Court when in 1971, in their ruling on the case of Cohen v California, they narrowed the definition of fighting worlds to include only those that are spoken directly to another with the intent to infringe upon the peace. While I applaud the court’s decision in the 1942 Chaplinsky v New Hampshire case to officially determine when expression crosses the line from worthy of First Amendment protection to worthy of punishment by government, the inclusion of offensive language that does not precipitate violence in the definition of fighting words needed modification. In tune with Emerson, the Cohen case altered the definition of fighting words to imply that the audience is responsible for themselves so long as the speaker does not directly engage in a provocation to anger. Justice Harlan, in delivering the opinion of the court, goes even further by discussing the idea that language is chosen not only to describe a situation or state a fact but also to evoke emotive content from both the speaker and the audience. The following quote by Justice Harlan is one I repeatedly refer back to, “[Linguistic expression] conveys only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.” (Tedford, 176)
Hate speech is the topic of this excerpt of Griffin’s:
Looking to the case of Wisconsin v Mitchell, the U.S. Supreme Court upheld the conviction after the Wisconsin Supreme Court did not, because the verdict was based on the conduct of Mitchell. This refers back to the conduct, or action part of Emerson’s Expression-Action Theory in which action is condemnable but expression is not. I would therefore agree with the court’s ultimate verdict. The court did go on to say that because the actions of Todd Mitchell and his followers were racially motivated, it “is thought to inflict greater individual and societal harm,” as expressed by Chief Justice Rehnquist. (Tedford, 182) I would not go so far as to agree with the latter part of the court’s verdict in integrating suspect classes into the decision making process. Upon reference to Article 2 of the Universal Declaration of Human Rights, I find that no distinction of any kind is made concerning, “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” I would have judged this case, and all others, purely on the grounds of whether or not the defendant crossed the line between expression and action or inspired harm through his/her actions.
This final passage considers the establishment of incitement into the court system and the level of scrutiny it requires:
The U.S. Supreme Court decision in the 1969 case of Brandeburg v Ohio has continually influenced me in my views on freedom of expression. In this case, the standard of incitement is established. Incitement takes into consideration the intent of the speaker to encourage action that is contrary to the law and the imminent reality of this action taking place. In the words of the court, speech can be constrained only in situations, “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Tedford, 66) The court’s view on incitement works in conjunction with the principles of Emerson and Mill, and therefore with the reasoning I follow. The use of incitement by the courts oftentimes leads me to employ a level of strict scrutiny.
Ultimately, Shelley N Griffin is an advocate for allowing the free reign of expression so long as it poses no threat of danger to either the speaker or the audience. She recognizes that by enabling the people to think, speak, and promote new ideas a deeper truth can be discovered. Furthermore, the discussion of new, unconventional ideas can give rise to the possibility of an even more democratic government. Discovery of truth and the creation of a perfectly democratic society is, for Shelley Griffin.
Tuesday, March 15, 2011
Wednesday, February 9, 2011
In December 2009, barely over a year ago, the Supreme Court of Canada expanded their defamation laws by including non-journalists in their “responsible journalist” defense, under what it’s now calling “responsible communication.” Responsible Communication allows the writers who are accused of libel to prove their published words are truthful and relate to matters concerning public opinion. Two libel cases, Grant v Torstar and Quan v Cusson, were connected to this change. Both fall under the category of defamation cases but were not tried under the new standard of responsible communication, the courts ordered new trials for both lawsuits.
Grant v Torstar involved the publication of an article in The Toronto Star, and the supposed defamation of a well-known executive, Peter Grant. The article claimed that Grant, who intended to expand a golf course on land owned by him, had used his connections, politically and personally, to skip part of the process of approving the plans to do so. The court awarded Grant $1.24 million.
In the Quan v Cusson case, Ontario Provincial Police Const. Danno Cusson was purportedly defamed in an article published by The Ottawa Citizen. The article alleged Cusson, who had gone to help aid in the aftermath of 9/11, had gone against the will of his superior officers and lied about his training. The jury found The Ottawa Citizen to have published false statements and awarded Cusson compensation of $95,000.
“Responsible communication” is intended to give more liberty to all writers, journalists and non-journalists alike, to publish stories on topics important to the public so long as they can prove the truth of their statements and the backing of their research. This is quite similar to the “actual malice” standard used by the United States since 1964 in the case New York Times v Sullivan. Although the requirements for each standard differ in many ways, the basis for these are fairly comparable. Actual malice, which is used only in ruling whether or not defamation has occurred toward a public official, requires the plaintiff to prove that either the communicator knew his or her speech was false or took no precaution in attempting to determine the truth of falsity of his or her claim.
In the case of New York Times v Sullivan, L.B. Sullivan attempted to receive compensation for defamation from the New York Times for running an ad that had criticized the Montgomery police force, whom he was supervising at the time, in their response to civil rights demonstrations. Although the Alabama courts voted in favor of Sullivan, the U.S. Supreme Court reversed the decision stating that, the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ - that is, which knowledge that it was false or with reckless disregard of whether it was false or not.”
Gertz v Welsch is another case whose decision was determined by actual malice. Lawyer Elmer Gertz was defamed in a series of articles published by American Opinion, that claimed he was part of a communist conspiracy after he represented a case in opposition of a local police officer. Instead of treating him as a public official, the Court ruled that in the facts of the case, Gertz was to be treated as a private citizen, and that the statements in the article were not protected by the First Amendment.
Although they are both standards for determining the outcome of libel lawsuits, “actual malice” differs from “responsible communication” in a number of ways. The main difference is that actual malice requires the plaintiff to prove the communicator guilty; it must be clear that the speaker either knew the message was false or did not care if it was truthful. Responsible communication, on the other hand, requires the communicator to prove themselves innocent; they must make it clear they attempted fact verification. Actual malice also makes a distinction between whether the defamed individual is a public official or a private citizen.
Both libel lawsuit standards equally balance the Universal Declaration of Human Rights protection for freedom of speech. Actual malice protects the speaker and responsible communication exposes stories that matter to the public interest, both of which encourage free speech. In determining which standard better protects reputation through the UDHR, actual malice win out because it also preserves the reputation of the speaker by requiring the allegedly defamed to prove the speaker’s statement to be purposefully false.
Grant v Torstar involved the publication of an article in The Toronto Star, and the supposed defamation of a well-known executive, Peter Grant. The article claimed that Grant, who intended to expand a golf course on land owned by him, had used his connections, politically and personally, to skip part of the process of approving the plans to do so. The court awarded Grant $1.24 million.
In the Quan v Cusson case, Ontario Provincial Police Const. Danno Cusson was purportedly defamed in an article published by The Ottawa Citizen. The article alleged Cusson, who had gone to help aid in the aftermath of 9/11, had gone against the will of his superior officers and lied about his training. The jury found The Ottawa Citizen to have published false statements and awarded Cusson compensation of $95,000.
“Responsible communication” is intended to give more liberty to all writers, journalists and non-journalists alike, to publish stories on topics important to the public so long as they can prove the truth of their statements and the backing of their research. This is quite similar to the “actual malice” standard used by the United States since 1964 in the case New York Times v Sullivan. Although the requirements for each standard differ in many ways, the basis for these are fairly comparable. Actual malice, which is used only in ruling whether or not defamation has occurred toward a public official, requires the plaintiff to prove that either the communicator knew his or her speech was false or took no precaution in attempting to determine the truth of falsity of his or her claim.
In the case of New York Times v Sullivan, L.B. Sullivan attempted to receive compensation for defamation from the New York Times for running an ad that had criticized the Montgomery police force, whom he was supervising at the time, in their response to civil rights demonstrations. Although the Alabama courts voted in favor of Sullivan, the U.S. Supreme Court reversed the decision stating that, the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ - that is, which knowledge that it was false or with reckless disregard of whether it was false or not.”
Gertz v Welsch is another case whose decision was determined by actual malice. Lawyer Elmer Gertz was defamed in a series of articles published by American Opinion, that claimed he was part of a communist conspiracy after he represented a case in opposition of a local police officer. Instead of treating him as a public official, the Court ruled that in the facts of the case, Gertz was to be treated as a private citizen, and that the statements in the article were not protected by the First Amendment.
Although they are both standards for determining the outcome of libel lawsuits, “actual malice” differs from “responsible communication” in a number of ways. The main difference is that actual malice requires the plaintiff to prove the communicator guilty; it must be clear that the speaker either knew the message was false or did not care if it was truthful. Responsible communication, on the other hand, requires the communicator to prove themselves innocent; they must make it clear they attempted fact verification. Actual malice also makes a distinction between whether the defamed individual is a public official or a private citizen.
Both libel lawsuit standards equally balance the Universal Declaration of Human Rights protection for freedom of speech. Actual malice protects the speaker and responsible communication exposes stories that matter to the public interest, both of which encourage free speech. In determining which standard better protects reputation through the UDHR, actual malice win out because it also preserves the reputation of the speaker by requiring the allegedly defamed to prove the speaker’s statement to be purposefully false.
Monday, January 31, 2011
Sticks & Stones May Break My Bones, But Words Will Never Hurt Me?
A question that has been raised more and more frequently since the latter half of the twentieth-century is “How much pathos is to be protected in speech?” or even more succinctly, “How much can a speaker offend an audience before it is punishable by law?” It is my claim that expression should be protected at all costs, in any form, until that expression leads to an audience member’s provocation to fight or fear for their life and that a “harm” theory would best serve the citizens of the United States.
The case of Snyder v Phelps is a perfect example of a case in which, before a verdict can be reached, assessing this question is necessary. The Westboro Baptist Church, led by Rev. Fred Phelps, has become known for picketing outside of the funerals of deceased soldiers waving signs that read “God Hates You,” and “Thank God for Dead Soldiers.” The church, consisting of 70-some members, almost exclusively Rev. Phelps’ relatives, have made demonstrations like this for around 19 years. Their philosophy is that American soldiers are being killed by God in order to punish the country for being open to homosexuality.
In recent times, in part because of these protests by the Westboro Baptist Church, a number of states have approved laws that restrict the rights of funeral demonstrators.
The father, Albert Snyder, of Marine Corporal Matthew Snyder who had been killed in Iraq filed a lawsuit against the Westboro Baptist Church, after they protested outside of his sons’s funeral in 2006. Snyder was originally granted almost eleven-million-dollars in damages for physical and mental trauma by the federal Jury in Maryland. The 4th U.S. Circuit Court of Appeals discarded the Maryland verdict because, according to them, the picketing was protected under the First Amendment guarantee of freedom of speech. The case has now been sent to the Supreme Court. It is my claim that, as a U.S. Supreme Court Justice, the speech used in the demonstrations outside the funeral in the case of Snyder v Phelps, is protected by the First Amendment right to freedom of speech.
When examining the Expression-Action Theory of freedom of speech philosopher Thomas Emerson, in relation to case of Snyder v Phelps, the demonstration by the Westboro Baptist Church must be protected as freedom of speech. Emerson begins his explanation of the Expression-Action Theory by stating that included in freedom of expression is the right to “form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses,” as written by Thomas L. Tedford and Dale A. Herbeck in Freedom of Speech in the United States. In applying this argument to the facts of the case, the members of the Westboro Baptist Church were merely expressing their beliefs, however irrational or irreverent, through protest, their medium of choice. As argued by Ken Paulson of the First Amendment Center, all American citizens have the right to publicly state their beliefs, even if those beliefs are illogically conceived. Emerson also clearly distinguishes the difference between expression and action in relation to the speaker. He argues that expression is always to be allowed and encouraged while action can be controlled if need be. Again, the funeral protesters were stating their views through picketing and protesting, which is, under the laws of freedom of speech, protected as expression and not action.
Although the protection of the expression of the speaker’s viewpoint is protected as free speech, it is obvious that the speech demonstrated by the members of the Westboro Baptist Church was offensive and possibly harmful to those suffering the loss of a family member. At this point, the topic of our discussion comes to the forefront. It is questioned whether or not emotional damage that stems not from action, but from expression, is punishable by the United States law. Emerson points out four problem areas in his Expression-Action Theory in which, depending upon specific circumstances, the protection of expression may or may not be upheld. These four problem areas include sedition, defamation, obscenity, and provocation to anger. The one that relates to the Snyder v Phelps case is the provocation to anger. He argues that in general, the audience is responsible for themselves. This means that, most of the time, when an audience member is angered by the words of the speaker, it is their duty to remove themselves from the situation or restrain themselves from acting upon their anger. However, Emerson does contend that when the words are spoken directly to the audience member in a way that provokes a fight, the speech is no longer protected. Although the words and views expressed by the protestors likely angered the family members of Matthew Snyder, they were not spoken directly to the father, Albert. There was no immediate danger of an outbreak of a fight, and therefore, I argue that the situation called for the audience member (Albert Snyder) to take responsibility for himself.
This is better explained after examination of the juxtaposition between the cases of Collin v Smith and Frisby v Schultz. In Collin v Smith, the U.S. Court of Appeals for the Seventh Cuircuit, protected the rights of an American Nazi party to march about Skokie, Illinois, which had a predominantly Jewish population. Frisby v Schultz on the other hand, banned residential picketing after anti-abortion protesters had demonstrated outside a physician’s home who performed abortions. The underlying message in the context of these two cases is that expression will be protected until someone is singled out in hopes of a provocation to anger. Emerson also argues, as one of his core functions and values of the Expression-Action Theory, that freedom of expression is protected as a means of “achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.” He is arguing that freedom of speech should be protected because, among other reasons, it will help create a more “adaptable and stable” community. I argue that, although I do not agree with the messages/viewpoints of the speakers, they have the right to express them in order to make the community more adaptable; it will help the community be more open to change and the examination of different viewpoints.
In fact, Ken Paulson, again argues that “hateful comments that refer to public issues are protected.” He explains that, although the members of the church expressed harsh and demeaning statements, they were protected by the court to express their opinions on gays in the military. On the other hand, Paulson does see the tug and pull of both sides saying that “The Westboro Baptist Church is acting on its faith, while the Snyder family believes it was deprived of its rights to worship and to assemble.” That is why they are only protected so long as they do not commit verbal acts in a direct encounter.
The Cohen v California case of 1971 has much relevance to this issue. In the inciting incident, Paul Robert Cohen wore a jacket that said, “Fuck the Draft” on it and was consequently sentenced to thirty days in jail. Upon reaching the U.S. Supreme Court, in which the verdict was reversed, it was determined that only words that meet a localized clear-and-present-danger test shall be punishable. Justice Harlan, in delivering the opinion of the court, made the point that language is chosen not only to describe a situation or state a fact, but also to evoke emotive content from both the speaker and the audience. He said, “It conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.” This, in terms of the Snyder v Phelps case, backs up the idea that despite the fact that the speech of the protesters was emotionally evocative, it is protected because it posed no clear-and-present-danger, in terms of provocation to anger, to the funeral attendees.
Another important case to look at, in terms of its relation to Snyder v Phelps is Wisconsin v Mitchell. Todd Mitchell, a young black man, rallied a group of other black men to attack a white boy. He said, “Do you all feel hyped up to move on some white people?” and “There goes a white boy; go get him.” He was convicted of aggravated battery which was eventually upheld by the U.S. Supreme Court. They upheld the conviction after the Wisconsin Supreme Court did not, because the verdict was based on the conduct of Mitchell. This refers back to the conduct, or action, part of Emerson’s Expression-Action Theory in which action is condemnable but expression is not.
After looking at the precedents set by the U.S. Supreme Court combined with the Expression-Action Theory created by Thomas Emerson, it is clear that in the case of Snyder v Phelps, the speech of the members of the Westboro Baptist Church should be upheld under the protection of freedom of speech. Although their speech was irrational, illogical, and derogatory, and I do not agree with it in the slightest, after examination of the theories presented by Emerson and the precedents set by the U.S. Supreme Court, specifically in the cases of Cohen v California and Wisconsin v Mitchell, as well as the history of the clear-and-present-danger test, I have no choice but to uphold the Fourth Circuit Court of Appeals finding.
A question that has been raised more and more frequently since the latter half of the twentieth-century is “How much pathos is to be protected in speech?” or even more succinctly, “How much can a speaker offend an audience before it is punishable by law?” It is my claim that expression should be protected at all costs, in any form, until that expression leads to an audience member’s provocation to fight or fear for their life and that a “harm” theory would best serve the citizens of the United States.
The case of Snyder v Phelps is a perfect example of a case in which, before a verdict can be reached, assessing this question is necessary. The Westboro Baptist Church, led by Rev. Fred Phelps, has become known for picketing outside of the funerals of deceased soldiers waving signs that read “God Hates You,” and “Thank God for Dead Soldiers.” The church, consisting of 70-some members, almost exclusively Rev. Phelps’ relatives, have made demonstrations like this for around 19 years. Their philosophy is that American soldiers are being killed by God in order to punish the country for being open to homosexuality.
In recent times, in part because of these protests by the Westboro Baptist Church, a number of states have approved laws that restrict the rights of funeral demonstrators.
The father, Albert Snyder, of Marine Corporal Matthew Snyder who had been killed in Iraq filed a lawsuit against the Westboro Baptist Church, after they protested outside of his sons’s funeral in 2006. Snyder was originally granted almost eleven-million-dollars in damages for physical and mental trauma by the federal Jury in Maryland. The 4th U.S. Circuit Court of Appeals discarded the Maryland verdict because, according to them, the picketing was protected under the First Amendment guarantee of freedom of speech. The case has now been sent to the Supreme Court. It is my claim that, as a U.S. Supreme Court Justice, the speech used in the demonstrations outside the funeral in the case of Snyder v Phelps, is protected by the First Amendment right to freedom of speech.
When examining the Expression-Action Theory of freedom of speech philosopher Thomas Emerson, in relation to case of Snyder v Phelps, the demonstration by the Westboro Baptist Church must be protected as freedom of speech. Emerson begins his explanation of the Expression-Action Theory by stating that included in freedom of expression is the right to “form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses,” as written by Thomas L. Tedford and Dale A. Herbeck in Freedom of Speech in the United States. In applying this argument to the facts of the case, the members of the Westboro Baptist Church were merely expressing their beliefs, however irrational or irreverent, through protest, their medium of choice. As argued by Ken Paulson of the First Amendment Center, all American citizens have the right to publicly state their beliefs, even if those beliefs are illogically conceived. Emerson also clearly distinguishes the difference between expression and action in relation to the speaker. He argues that expression is always to be allowed and encouraged while action can be controlled if need be. Again, the funeral protesters were stating their views through picketing and protesting, which is, under the laws of freedom of speech, protected as expression and not action.
Although the protection of the expression of the speaker’s viewpoint is protected as free speech, it is obvious that the speech demonstrated by the members of the Westboro Baptist Church was offensive and possibly harmful to those suffering the loss of a family member. At this point, the topic of our discussion comes to the forefront. It is questioned whether or not emotional damage that stems not from action, but from expression, is punishable by the United States law. Emerson points out four problem areas in his Expression-Action Theory in which, depending upon specific circumstances, the protection of expression may or may not be upheld. These four problem areas include sedition, defamation, obscenity, and provocation to anger. The one that relates to the Snyder v Phelps case is the provocation to anger. He argues that in general, the audience is responsible for themselves. This means that, most of the time, when an audience member is angered by the words of the speaker, it is their duty to remove themselves from the situation or restrain themselves from acting upon their anger. However, Emerson does contend that when the words are spoken directly to the audience member in a way that provokes a fight, the speech is no longer protected. Although the words and views expressed by the protestors likely angered the family members of Matthew Snyder, they were not spoken directly to the father, Albert. There was no immediate danger of an outbreak of a fight, and therefore, I argue that the situation called for the audience member (Albert Snyder) to take responsibility for himself.
This is better explained after examination of the juxtaposition between the cases of Collin v Smith and Frisby v Schultz. In Collin v Smith, the U.S. Court of Appeals for the Seventh Cuircuit, protected the rights of an American Nazi party to march about Skokie, Illinois, which had a predominantly Jewish population. Frisby v Schultz on the other hand, banned residential picketing after anti-abortion protesters had demonstrated outside a physician’s home who performed abortions. The underlying message in the context of these two cases is that expression will be protected until someone is singled out in hopes of a provocation to anger. Emerson also argues, as one of his core functions and values of the Expression-Action Theory, that freedom of expression is protected as a means of “achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.” He is arguing that freedom of speech should be protected because, among other reasons, it will help create a more “adaptable and stable” community. I argue that, although I do not agree with the messages/viewpoints of the speakers, they have the right to express them in order to make the community more adaptable; it will help the community be more open to change and the examination of different viewpoints.
In fact, Ken Paulson, again argues that “hateful comments that refer to public issues are protected.” He explains that, although the members of the church expressed harsh and demeaning statements, they were protected by the court to express their opinions on gays in the military. On the other hand, Paulson does see the tug and pull of both sides saying that “The Westboro Baptist Church is acting on its faith, while the Snyder family believes it was deprived of its rights to worship and to assemble.” That is why they are only protected so long as they do not commit verbal acts in a direct encounter.
The Cohen v California case of 1971 has much relevance to this issue. In the inciting incident, Paul Robert Cohen wore a jacket that said, “Fuck the Draft” on it and was consequently sentenced to thirty days in jail. Upon reaching the U.S. Supreme Court, in which the verdict was reversed, it was determined that only words that meet a localized clear-and-present-danger test shall be punishable. Justice Harlan, in delivering the opinion of the court, made the point that language is chosen not only to describe a situation or state a fact, but also to evoke emotive content from both the speaker and the audience. He said, “It conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.” This, in terms of the Snyder v Phelps case, backs up the idea that despite the fact that the speech of the protesters was emotionally evocative, it is protected because it posed no clear-and-present-danger, in terms of provocation to anger, to the funeral attendees.
Another important case to look at, in terms of its relation to Snyder v Phelps is Wisconsin v Mitchell. Todd Mitchell, a young black man, rallied a group of other black men to attack a white boy. He said, “Do you all feel hyped up to move on some white people?” and “There goes a white boy; go get him.” He was convicted of aggravated battery which was eventually upheld by the U.S. Supreme Court. They upheld the conviction after the Wisconsin Supreme Court did not, because the verdict was based on the conduct of Mitchell. This refers back to the conduct, or action, part of Emerson’s Expression-Action Theory in which action is condemnable but expression is not.
After looking at the precedents set by the U.S. Supreme Court combined with the Expression-Action Theory created by Thomas Emerson, it is clear that in the case of Snyder v Phelps, the speech of the members of the Westboro Baptist Church should be upheld under the protection of freedom of speech. Although their speech was irrational, illogical, and derogatory, and I do not agree with it in the slightest, after examination of the theories presented by Emerson and the precedents set by the U.S. Supreme Court, specifically in the cases of Cohen v California and Wisconsin v Mitchell, as well as the history of the clear-and-present-danger test, I have no choice but to uphold the Fourth Circuit Court of Appeals finding.
Tuesday, January 18, 2011
The Enduring Controversy: My God...Your Speech!
In determining the most just way in which laws governing communication are shaped, a central focus must be identified. I claim that the position to protect individual universal civil liberty over reinforcing majority group values, even if they violate the majority opinion should be the primary focus of laws governing communication. In justification of this claim, I intend to use doctrinal precedents, textual/linguistic, and historical lines of reasoning. Through these I will discuss the U.S. Supreme Court case Burstyn v. Wilson, the Universal Declaration of Human Rights, and the strength of the areopagitic approach to law over the theocentric approach, respectively.
The U.S. Supreme Court case Burstyn v. Wilson in 1952, in which an Italian film entitled The Miracle was given protection by the First Amendment after being restrained by New York courts for being sacrilegious is significant for more than the fact that it reversed the 1915 decision of Mutual Film v. Ohio Industrial Commission to not protect motion pictures. It makes certain the fact that constitutionally, blasphemy is not a lawful reason to suppress ideas or opinions. This has an affect on the argument of whether religions should be protected by the government from sacrilegious criticism. By the Supreme Court ruling that blasphemy is not a reason to allow the restraint of distribution of the film The Miracle, it set a precedent that must be upheld.
As a second reason for my claim that protection of an individual universal civil liberty should be the primary focus of laws which govern communication, is the Universal Declaration of Human Rights. Upon examination of article 19, the Supreme Court’s decision to protect The Miracle, and to not protect blasphemy over freedom of speech, as mentioned above, appears even more rational as it appeals to logos. Article 19 states “Everyone has a right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” The freedom of opinion and expression through any media is explicitly stated, meaning that the views of those who created the film are protected and that the perceived sacrilege is no reason to take away their right as stated in article 19.
This all circles back to the idea of individual universal human rights. The entire document refers to the specific rights of each individual citizen. The rights given to each person are based upon their autonomy to think and act for themselves, not as their fellow citizens want them to. Based on an ethics of principle, in which the four principles of non-maleficence, beneficence, respect for autonomy, and justice are the focus of ethical decision making, it would make the most sense, based on an appeal to logos, to allow the individual his/her freedom and to protect that freedom when it is in danger of being violated. Even if the majority opinion is that the individual has been blasphemous or sacrilegious, it is the government’s responsibility to come to their aid. A blasphemous statement does not violate the rights of the majority that are offended by it.
Article 30 of the Universal Declaration of Human Rights is written as follows, “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” When applying this with the idea that the blasphemy of an individual offends the majority group values, it is important to determine the difference between offending the majority and hurting the majority. As long as the act does not intend to hurt the opposition, either in a physical, mental, or reputation sense, it is still unconstitutional to take the individual’s freedom from him/her. A blasphemous or sacrilegious statement or act that offends does not necessarily destruct the rights or freedoms of the majority group. This does not mean that the majority’s rights should be taken away in lieu of protecting the individual, however, the primary focus should be on the individual, based on the doctrinal precedent of Burstyn v. Wilson, and the textual/linguistic reasoning of the Universal Declaration of Human Rights.
In a final effort to support my claim, an examination of the areopagitic approach to law will be beneficial. The areopagitic approach to law, based on the trilogy, The Orestes, is very similar to the current judicial system present in the United States, which follows the Universal Declaration of Human Rights. In the final installment of the trilogy, Orestes, who has killed his mother to punish her for murdering his father, is tried by a jury and is acquitted. The trial of Orestes focuses on the interpretation of the law concerning his transgression. The facts themselves are not disputed because he has already admitted he is guilty. The court does not argue about the facts, which have already been made clear, but about the law and how it is to be used in determining the punishment of the committed crime. Aeschylus, the playwright, places emphasis on the individual situation based on already established universal truths which support civil liberty. Orestes’ transgression was not judged by the offenses he committed against the murdered (his mother) nor was it judged by the opinion of those in opposition to him (the Eumenides), but was instead determined by an unaffected jury whose verdict was based on previously determined universal truths.
This is in contrast with the theocentric approach to law in which the law is unalterable; literally set in stone (by God). In this approach, the punishment is not judged on a case by case basis. It is judged by the opinion of one, who is not to be questioned and whose decision is not to be changed. The areopagitic approach is in step with the current judicial system of the United States, which follows the Universal Declaration of Human Rights and all that it entails about the freedom of speech. As seen in The Orestes, universal protection of civil liberty is the focus, as opposed to the protection of local values in turmoil with other expressed views.
Drawing from the above statements, I would protect both the photographer who created “Ecce Homo” and the cartoonists in Jyllands-Posten who satirized Mohammad. In reference to the Burstyn v. Wilson trial, in which a precedent of protecting freedom of speech over condemning blasphemous or sacrilegious expression, the protection of both speakers would need to be upheld. Justice Clark, who expressed the opinion of the court’s decision is quoted saying, “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” Such a statement gives right to both speakers the protection of their freedom of speech. Although in both cases, turmoil was incited and, in the case of the Jyllands-Posten, people were killed, the freedom of speech entitled to both of them would require the government to give them protection.
The Universal Declaration of Human Rights also protects the speakers through article 19, which is stated and discussed above. The right to express their opinion should not be taken away because they offended a majority group. Kurt Westergaard, one of the cartoonists who submitted a drawing of Muhammad, has drawn other such representations of different religious leaders such as Jesus, that has stirred discussion of appropriateness. However, the outcry for censorship concerning the drawing of Muhammad was much more dramatic. Westergaard explains that he was treating Muslims in Denmark as equals, like he treats Christians, Buddhists, Hindus, etc.: with satire. Just because the outrage resulting from the Muhammad cartoon was bigger and more intimidating (just because the majority group is bigger and louder) does not mean that he should lose his individual right to freedom of expression through media.
When applying these same principles to the burning of the Koran by pastor Terry Jones, however, the line gets blurrier. It is very easy to use the justifications listed above to ensure the protection of Jones. Yet, this may violate the protection of others stated in article 30 of the Universal Declaration of Human Rights. Article 30 protects people from using the document as a way to destroy other’s rights of freedom. The areopagitic approach is useful in these situations, in which the individual case is examined and the ultimate good for civil liberty is decided. Seeing as the United States is on such fragile terms with the Middle East, burning the Koran could give radicals reason to plan a terrorist attack on the country. Looking at all the facts, it could come to stand that the ultimate ruling, for the betterment of the public and the protection of their right to live freely, is to take away Jones’ liberty to burn the Koran. With the imminence of a terrorist attack, U.S. citizens would lose their rights stated in article 3, which says, “Everyone has the right to life, liberty and security of person”.
In conclusion, my claim that the position to protect individual universal civil liberty over reinforcing majority group values, even if they violate the majority opinion should be the primary focus of laws governing communication has been proven through historical evidence and an appeal to logos. Although the responsibility of the government concerning the protection of its citizen’s freedom of speech is not black and white, following certain principles, it can stay consistent while keeping its people safe.
In determining the most just way in which laws governing communication are shaped, a central focus must be identified. I claim that the position to protect individual universal civil liberty over reinforcing majority group values, even if they violate the majority opinion should be the primary focus of laws governing communication. In justification of this claim, I intend to use doctrinal precedents, textual/linguistic, and historical lines of reasoning. Through these I will discuss the U.S. Supreme Court case Burstyn v. Wilson, the Universal Declaration of Human Rights, and the strength of the areopagitic approach to law over the theocentric approach, respectively.
The U.S. Supreme Court case Burstyn v. Wilson in 1952, in which an Italian film entitled The Miracle was given protection by the First Amendment after being restrained by New York courts for being sacrilegious is significant for more than the fact that it reversed the 1915 decision of Mutual Film v. Ohio Industrial Commission to not protect motion pictures. It makes certain the fact that constitutionally, blasphemy is not a lawful reason to suppress ideas or opinions. This has an affect on the argument of whether religions should be protected by the government from sacrilegious criticism. By the Supreme Court ruling that blasphemy is not a reason to allow the restraint of distribution of the film The Miracle, it set a precedent that must be upheld.
As a second reason for my claim that protection of an individual universal civil liberty should be the primary focus of laws which govern communication, is the Universal Declaration of Human Rights. Upon examination of article 19, the Supreme Court’s decision to protect The Miracle, and to not protect blasphemy over freedom of speech, as mentioned above, appears even more rational as it appeals to logos. Article 19 states “Everyone has a right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” The freedom of opinion and expression through any media is explicitly stated, meaning that the views of those who created the film are protected and that the perceived sacrilege is no reason to take away their right as stated in article 19.
This all circles back to the idea of individual universal human rights. The entire document refers to the specific rights of each individual citizen. The rights given to each person are based upon their autonomy to think and act for themselves, not as their fellow citizens want them to. Based on an ethics of principle, in which the four principles of non-maleficence, beneficence, respect for autonomy, and justice are the focus of ethical decision making, it would make the most sense, based on an appeal to logos, to allow the individual his/her freedom and to protect that freedom when it is in danger of being violated. Even if the majority opinion is that the individual has been blasphemous or sacrilegious, it is the government’s responsibility to come to their aid. A blasphemous statement does not violate the rights of the majority that are offended by it.
Article 30 of the Universal Declaration of Human Rights is written as follows, “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” When applying this with the idea that the blasphemy of an individual offends the majority group values, it is important to determine the difference between offending the majority and hurting the majority. As long as the act does not intend to hurt the opposition, either in a physical, mental, or reputation sense, it is still unconstitutional to take the individual’s freedom from him/her. A blasphemous or sacrilegious statement or act that offends does not necessarily destruct the rights or freedoms of the majority group. This does not mean that the majority’s rights should be taken away in lieu of protecting the individual, however, the primary focus should be on the individual, based on the doctrinal precedent of Burstyn v. Wilson, and the textual/linguistic reasoning of the Universal Declaration of Human Rights.
In a final effort to support my claim, an examination of the areopagitic approach to law will be beneficial. The areopagitic approach to law, based on the trilogy, The Orestes, is very similar to the current judicial system present in the United States, which follows the Universal Declaration of Human Rights. In the final installment of the trilogy, Orestes, who has killed his mother to punish her for murdering his father, is tried by a jury and is acquitted. The trial of Orestes focuses on the interpretation of the law concerning his transgression. The facts themselves are not disputed because he has already admitted he is guilty. The court does not argue about the facts, which have already been made clear, but about the law and how it is to be used in determining the punishment of the committed crime. Aeschylus, the playwright, places emphasis on the individual situation based on already established universal truths which support civil liberty. Orestes’ transgression was not judged by the offenses he committed against the murdered (his mother) nor was it judged by the opinion of those in opposition to him (the Eumenides), but was instead determined by an unaffected jury whose verdict was based on previously determined universal truths.
This is in contrast with the theocentric approach to law in which the law is unalterable; literally set in stone (by God). In this approach, the punishment is not judged on a case by case basis. It is judged by the opinion of one, who is not to be questioned and whose decision is not to be changed. The areopagitic approach is in step with the current judicial system of the United States, which follows the Universal Declaration of Human Rights and all that it entails about the freedom of speech. As seen in The Orestes, universal protection of civil liberty is the focus, as opposed to the protection of local values in turmoil with other expressed views.
Drawing from the above statements, I would protect both the photographer who created “Ecce Homo” and the cartoonists in Jyllands-Posten who satirized Mohammad. In reference to the Burstyn v. Wilson trial, in which a precedent of protecting freedom of speech over condemning blasphemous or sacrilegious expression, the protection of both speakers would need to be upheld. Justice Clark, who expressed the opinion of the court’s decision is quoted saying, “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” Such a statement gives right to both speakers the protection of their freedom of speech. Although in both cases, turmoil was incited and, in the case of the Jyllands-Posten, people were killed, the freedom of speech entitled to both of them would require the government to give them protection.
The Universal Declaration of Human Rights also protects the speakers through article 19, which is stated and discussed above. The right to express their opinion should not be taken away because they offended a majority group. Kurt Westergaard, one of the cartoonists who submitted a drawing of Muhammad, has drawn other such representations of different religious leaders such as Jesus, that has stirred discussion of appropriateness. However, the outcry for censorship concerning the drawing of Muhammad was much more dramatic. Westergaard explains that he was treating Muslims in Denmark as equals, like he treats Christians, Buddhists, Hindus, etc.: with satire. Just because the outrage resulting from the Muhammad cartoon was bigger and more intimidating (just because the majority group is bigger and louder) does not mean that he should lose his individual right to freedom of expression through media.
When applying these same principles to the burning of the Koran by pastor Terry Jones, however, the line gets blurrier. It is very easy to use the justifications listed above to ensure the protection of Jones. Yet, this may violate the protection of others stated in article 30 of the Universal Declaration of Human Rights. Article 30 protects people from using the document as a way to destroy other’s rights of freedom. The areopagitic approach is useful in these situations, in which the individual case is examined and the ultimate good for civil liberty is decided. Seeing as the United States is on such fragile terms with the Middle East, burning the Koran could give radicals reason to plan a terrorist attack on the country. Looking at all the facts, it could come to stand that the ultimate ruling, for the betterment of the public and the protection of their right to live freely, is to take away Jones’ liberty to burn the Koran. With the imminence of a terrorist attack, U.S. citizens would lose their rights stated in article 3, which says, “Everyone has the right to life, liberty and security of person”.
In conclusion, my claim that the position to protect individual universal civil liberty over reinforcing majority group values, even if they violate the majority opinion should be the primary focus of laws governing communication has been proven through historical evidence and an appeal to logos. Although the responsibility of the government concerning the protection of its citizen’s freedom of speech is not black and white, following certain principles, it can stay consistent while keeping its people safe.
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