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.
