Protection of Speech!

With over 200 years of being law in the United States, it would seem as though “free speech” would not be something that would be debated much in society, especially in front of the courts that have been establishing court precedents for so long. That is definitely not the case. As the root to some of the most debated conflicts of the country, an individual’s speech is contended in regards to how it is produced, distributed, and received. While analyzing the Supreme Court case precedents from the past 100 years, all in regard to free speech, using the exact same scripture the justices have been evolving their decisions to become more accustom with total freedom of the speech.

 In order to enforce the amendment consistently, I believe that the justices and the government must not restrict speech and must only restrict crimes that harm people. Words, pictures, cartoons and sounds are not harmful, yes offensive, but not harmful. There must be strict scrutiny that a crime will happen and was created by the speaker, as well as clear knowledge that this crime would not have happened if this speech was not produced by the speaker before the government should punish the producer of the speech. Similar to C. Edwin Bakers limitations of his liberty theory, punishable speech that would qualify under my definition would include speech that “constitutes fraud, perjury, backmail, espionage, or treason.” The distribution, possession and reception of speech should never be limited or restricted.

Similar to other communication theorist Thomas Emerson and C. Edwin Baker, I believe that speech is a form of self-expression and self-fulfillment. Emerson states it well by stating that freedom of speech and expression “includes the right to form and hold beliefs on any subject and to communicate those beliefs to other by whatever medium one chooses,” but doesn’t take a strong enough standing by recognizing “four problem areas” that can still limit speech. These limitations: sedition, defamation, obscenity, and provocation to anger, are too broad and still rely too heavily on the beliefs of the society (average person test) at that time.

 Anytime the court uses an average or reasonable person standard test on an issue, injustice based on the subjective nature of that analysis is occurring. Society is constantly changing and something that was unreasonable years ago is now reasonable. An example of this would come from obscenity cases like Roth v. United States (1957) in which obscenity distribution was deemed illegal but years later in Miller v. California (1973), community standards and the justices reversed the decision and now obscenity is protected. Using the same amendment, there should be consistency especially with sixteen years between two similar cases.

To establish this consistency, the justices should take Baker’s advice and set out to fight for an individual’s expressive activity instead of trying to understand the impossible—what society deems reasonable. The individual’s ability to make their own choices about which messages they can create and which messages they can receive is empowering. In order to define “speech” for themselves, as Baker advocates, citizens must know that they have to courts and the justices advocating for their personal expression. With proclamations regarding communication, the initial reaction that many people have is “Yes! I agree!,” but when freedom of speech situations arise that go against a person’s moral compass, the protection of that speech is often debated, but under my standards, the speech and the person’s ability to have and express that belief is most important, rather than the content of the message. The areas of speech that are most often are contended are blasphemous speech, seditious speech, hate speech, personal libel, obscene speech, adolescent sexual speech and violent speech. In each of these areas, there are clear rationales that could be fought for limiting speech, many of which have won in prior precedents and been overturned, while others are still stances the justices hold and are fought against in court each year. To be completely clear on how these controversial areas of speech fall into my thought pattern and to better understand my stance on freedom of speech, I will delve deep into each of these areas using prior cases and precedents to define my stance.

In regard to blasphemous speech, the United States is in a unique situation compared to many nations around the world because of the lack of religious influence on the workings of the secular government. Never should anyone be tried on blasphemy charges in the United States and even the most untasteful of anti-religious actions must be granted as a freedom of speech and expression. Current blasphemous issues that have spurred international debate and outrage include the cartoon depictions of Muhammad, most of which insinuate global terror, and the burning of the Quran by an American pastor. Though both of these actions have been brought into court because of their offensive nature and the potential to create harm, these actions must be protected. Under the absolute protection of speech, these offensive messages empower the speaker and creator of the message to express their opinion freely. These messages do not have any direct causal relation to violence.

The United States Supreme Court justices began this motion towards looking at the incitement of imminent violence in Brandenburg v. Ohio (1969). In the landmark case that set a great precedent for seditious and violent speech, as well as the backbone to my firm protection of speech, it sets a bar that has to prove that the speaker is inciting violence to take place imminently. I have added the clause that this violence must be known not to happen and only happen because of the speaker’s incitement. An unfair application of this law happened in the case of Ali Al-Timimi (2005). Given a life sentence on the basis of encouraging jihad and soliciting to levy war against the United States, his speech failed to meet the basic rules in limiting speech. His acknowledgement of the rough times ahead for his fellow Muslims were justified and the words he spoke were not debated, the fact that he did not create violence or even demand violence is the root of the injustice. His speech should not have been limited because he did not incite imminent violence.

This logic that protects Al-Timimi’s speech can also be used to acknowledge the wrongdoing of Rwandan journalist Hassan Ngeze. Although it would seem that putting names of individuals in the media is not a crime, when it is done in a manner that encourages murder and sequentially the murder is followed through it, the speaker does not have the right to free speech. The messages that were created were such that if he were not to speak, the murders would have not happened. Ngeze’s purposeful incitement of a crime is the reason that there needs to be a limit to free speech. It must also be noted that the distribution and possession of Ngeze’s hate cannot be punished or limited because of the lack control over the creation.

It is clear that if someone creates a message that incites a crime, it can be limited, but what if the message is a depiction of a crime? Currently, the justice department continuously tries to restrict the possession and distribution of cruelty of animals. Although the act is illegal, the creation, distribution and possession of animal cruelty will happen regardless of the communication associated. Women will still crush kittens for arousal and illegal dog fights will still occur. Videotaping, recording, or having a visual record of the incident cannot be criminalized because it did not create the crime. The justice department and law enforcement should be actively searching for the animal abusers, not those with the voyeuristic presence to the incident. Unlike Ngeze whose speech actively created violence, depictions of animal abuse are passive participants in the situation, not stimulating the crime.

Those that advocate for the criminalization of the possession and creation of animal cruelty, often use the logic behind the illegality of child pornography. In Osborne v. Ohio (1990), the justices concluded that the Ohio law that stated that the mere possession of child pornography was illegal because they believed this will diminish the market for child pornography and create less child abuse. This law is unjust because it is irrational that the work itself created or will continue to create abuse. Then person that must be held responsible for the crime is the individual that engages with the child in the sexual act or the individual who forces the child to perform in pornography. The crime is illegal; the speech related to the crime cannot because it fails to have a clear and direct connection to the crime.

An analogy could be made to people who love science fiction movies: those who create, distribute and possess. Some of them will become astronauts and venture into space one day, 99.9% will just experience the messages related, never making it into space. The same is true with pornography, in particular child pornography. Many people will create, distribute and possess the pornography, some of them will create pornography and abuse children, most will not. It is those that have abused children that must be punished, most of whom would have abused children regardless of the messages or pornography created. Unlike many communication theorists and the current justices, I believe that child pornography should not be punished because it fails to be my criteria for punishable speech. The pornography has not imminent connection that it creates child exploitation and there is no possible way that know that child exploitation would have not have happened unless that pornography was created.

As advocates for the freedom of speech, it can be hard to set emotions aside when our moral compass directs us in a completely different direction than our moral communication compass. Although we have to stick to our own beliefs in our day to day actions, this advocacy must come with the respect of those with the completely different beliefs. When we begin to limit speech in any of the aspects, we start to limit the freedom of ideas and hinder the self fulfillment that communication provides for individuals. Just has it has been stated many times, speech should have maximum protection, only limited if the speech incites intimate harm and it is proven that the crime would not have happened if the speech did not occur.

Camming and Communication

The question in communication justice raised by the case of Cam4 vs. USA is to what extent the government can regulate and punish sexual speech on the internet, in regards to both the speaker and the distributor of the speech. I claim that the government should never regulate sexual speech on the internet nor regulate the distributor. To justify my claim, I will rely on the following three lines of reasoning: philosophical, doctrinal, and textual. Philosophically, as Thomas Emerson argues in his Expression-Action Theory, "obscenity" would be what society deems unacceptable and is thrust upon the public, which camming is definitely not. Doctrinally speaking, I will draw upon major precedents regarding obscenity and indecency, such as FFC vs. Pacifica Foundation and Miller vs. California. Once I have applied each of the precedents in the case, I will use the textual and linguistic meanings of these precedents and determining the applicability.

Free speech theorists often debate to what degree speech will be protected under the First Amendment, all limiting speech on the unsuspectingly contested word of "harm." For Emerson, his view on tests such as bad tendency, incitement, clear and present danger that have been used by the Court are vague and there are four problem areas that should be concluded to be the areas of speech that should not be necessarily protect by free speech: sedition, defamation, obscenity, and provocation to anger. Besides these aspects people should have the "freedom of expression includ[ing] the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses—whether by traditional means, such as speech and the press, or by other means, including music or art." In the case of Cam4 vs. USA, obscenity is the only aspect of Emerson's problem areas that would possibly be relevant.

The clause of obscenity for Emerson is only regarded to being "sexual material thrust upon unwilling receivers." At a website, such as Cam4 or even Skype, Yahoo!, or MSN, the supposed 'obscene' act is never thrust upon unwilling receivers, but is in fact sought out for be eagerly ambitious receivers. The only application of this clause would be if a Cam4 performer were to take control of some medium and broadcast their performance upon unwilling receivers, which is completely unlikely and is not relevant in the case. This parallels the example in the textbook of public sexual intercourse could be sexual conduct being punishable conduct. Cam4 is not public or available to unwilling viewers, unlike sexual intercourse in a park or street corner. If the private nature of Cam4 or any other camming service is considered punishable, so would sexual acts that would take place at your own home; which we all know is completely absurd.

Emerson's viewpoint provides a great rational and explanation of obscenity, I must turn to the legal definitions that have been set in prior court precedents in order to further understand the interpretations of the court. In Miller vs. California, the term "obscenity" is defined to take into consideration the worth and appeal to the community. The "average person" stipulation is so vague that this case provides a ridiculous definition for people to take away. The application with the terms 'appeal' and 'offense' is completely subjective. Under this precedent, Cam4 would definitely lose its case against the USA because of lack of value and the potential to offend the "average person." The factor that this case fails to address that is distribution channel, something that Justice Brennan takes up in his dissent. He believes that all sexual speech should be protected by privacy rights, as long as they are not strung upon a captive audience. With this stipulation, Cam4 would have a standing chance. Wow, this sounds very familiar, Emerson perhaps?

Later that decade in 1978, sexual speech was brought before the Supreme Court once again in FCC vs. Pacifica Foundation. In this case, not only is the word "indecent" defined, but the medium and viewer are better identified. With the case, the safety of children is brought up and introduced to the courts. Instead of the ban for the betterment of the community and society, sexual and patently offensive language must be hindered because of the risk to children. It is in this instance that it is more important to protect the receiver of the message, or potential receiver, than the speaker. This is absurd because offensive language does not translate into anything. Hearing the word "shit" or "fuck" do not lead to corruption. It the legal stuff on television, in books and on the radio, which can lead to corruption. I would think that the 10 year old girl that is addicted to E! News and loves the Bachelor, obsessing about her weight and fashion is more corrupt than the 8 year old boy that calls his poo "shit" and his pee "piss." What cuter than a little boy saying "shit?" Nothing!

Let's even play this little indecency game that the courts established in 1978 and tie it to the Cam4 case. If the whole intention of the courts were to truly make sure that children were not exposed to material and information that were not appropriate for them, the court's jurisdiction should not carry over to the online medium. Besides the fact that parents should be the ones responsible for what material and information their child is exposed to, in order to get on any website takes effort for the receiver of the message to get there. It is a willing effort for someone to log on to Cam4. There is absolutely no risk that children may be in the audience unless a child is the one typing www.cam4.com into the browser. The great thing that protects the providers of camming platforms is the outright effort that needs to take place to get to their website. Unlike broadcasting channels where it is easy to jump from channel to channel without direct acknowledgement of the next channel, websites need a specific name in order to find that website. Just as it takes the receiver's full attention to comprehend written communication, like a book or a magazine, websites take full attention for the users in order for full access to the message.

We know from Stanley vs. Georgia that private possession of obscenity is protected. There is no difference here with Cam4. The visitors and performers on Cam4 want to be on the website and all of them are willing participants. When visiting the website myself, the performers and visitors are fully engaged with the site. As the window for exhibitionism and voyeurism, Cam4 is the perfect place for people to experience some consensual kink. Something that the government should not regulate because there is no way that it would result in harm. Since the courts are always years behind the technology advances, the Stanley vs. Georgia ruling that states that "A State has no business telling a man, sitting alone in his own house, what books he may read, or what films he may watch," should be rewritten to "A State has no business telling a man, sitting alone in his own house, what books he may read, what films he may watch, what websites he can visit, or what he may show on his webcam." The digital community is not the same as the community identified in the community standard cases in 1973, Miller vs. California. No one in this Cam4 digital community will find that the sexual speech to be offensive because of their purposeful and intentional usage of the website.

Because of the above reasons and ground, I believe that in the case of Cam4 vs. USA, achieving communicative justice requires us to not limit camming communication on Cam4 or any other camming service. As the new age communication medium, it is completely unlike broadcast that needs regulation because of the potential corruption of children. Cam4 and other camming services provide an outlet for responsible adults to communicate. In order for this to even happen, the speaker and receiver must deliberately engage with the server. The textual and linguistic terms of obscenity and indecency become irrelevant because of the lack of risk that community or children will be exposed to the acts on the website. In order to act with the first amendment fully in mind, a strict scrutiny level of harm must be considered to take legal recourse towards the viewers and performers on Cam4. Such incidents would be rape on cam, murder on cam, and other assaults. These would not just be illegal acts because they are on Cam4, but would also be illegal in the non-digital world.

 

Libel Debate

As neighboring nations with analogous social cultures and customs, the United States and Canada have a disparity centered on the legality of personal libel. Both the Canadian Charter of Rights and Freedoms and the American Bill of Rights emphasize the importance of the freedom of speech; but both of their regulating agencies have ruled in different manners when problems arise with the overarching exceptions to the law. The majority of these exceptions to the “Freedom of Speech” come forth when another ‘right’ is violated. Similar to Article 12 of the Universal Declaration of Human Rights, both countries have setup laws protecting citizens against others damaging their reputation and honor, telling untruths to others. It is the role of the regulating agent, the court, to play a balancing act with the damage to reputation on one side, with the ability for an individual to say whatever they would like on the other.

The United States has been the most successful at balancing free speech and reputation, in part to the precedent set in 1964 in New York Times v. Sullivan. In this case, newspapers were finally freed to tell stories without the fear of backlash in court after what a reader may call defamatory. Media is most important vessel to get the truth out to the public and to hold others accountable. For media to be in any fear of retaliation based in speech, it will be paralyzing accountability the media places on politicians, corporations, and society. In this case, the courts introduced the element of ‘actual malice’ as the stipulation that will limit speech. ‘Actual malice’ means in court that the victim of the alleged defamation must prove that the accused knew that the statement in question was false and disregarded the truth.

This ‘actual malice’ principle is the best balance of free speech and reputation because it only penalizes individuals that are out to hurt others. It also does not limit media or individuals from taking risks in what they publish. If a media outlet or individual blogger feels like there is enough information to go on, they can take that risk and publish it. Even if they are wrong, there are no legal consequences because they had no harm in mind. In 1974, the ‘actual malice’ was addressed in the case of Gertz v. Welch in relation to private citizens and public officials or organizations.

Just as it should be, the courts decided that private citizens should be protected more against defamation than public figures. If a private citizen is going to have a libelous claim brought against them, the speech better be fully rooted in truth and accuracy. In this case, malicious words were brought against an ordinary citizen by a media outlet, all of which were not researched properly. Although the rights of the speaker are limited with this clause, the United States has this clause in effect because it will stop innocent people from being defamed out of spiteful and unjustified reasons.

In Canada, the courts have established a different test called “reasonable communication,” which changes the burden of proof in the case. Instead of the alleged victim of the case proving injustice, it is up the accused to prove that their speech was responsibly justified. In the case of Grant v. Thorstar, the verdict was dependant of whether or not this issue was of public interest and whether or not the accused had done enough investigation to figure out the truth. The dependence should not be considered because public interest is always changing and what is in someone’s interest may not be in another’s. The justification in looking for enough evidence is also a poor clause in the Canadian system. Though it may seem justified by telling the truth only, sometimes there is not enough information available and reporters must go out on a limb. With fear of doing this, reporters may start to damper their pieces.

In another similar case of Quan v. Cusson, the fantasia of “responsible communication” is once again addressed when a news source must defend a piece. Though there was truth to it, some of the details were wrong. Even with research, sometimes aspects to speech will be wrong and unless there were malicious intentions are behind it, an apology or retraction will always follow. Lawsuits are expensive and if a government wants discussion and debate to flourish, they must follow suit with the United States method of balancing free speech and reputation with “actual malice.”

Bounded Agora Post

As individuals who stand up for free speech no matter what, it is our duty to defend speech, regardless of our stance on the issue.  In the case of Al-Timimi, who was convicted on ten counts of criminal charges including inducing others to carry explosives and inducing others to conspire to levy war, the situation becomes more difficult in determining if free speech should be protected—no matter what. In a modern day example of an age-old debate that has struck communication theorists, what is the limit to free speech? Over the years, the philosophical grounding for this debate has evolved and this evolution has influenced people in power have been able to use these ideals as a basis of law around the world, which makes it particularly interesting here in the United States that prides itself around freedom of speech. Looking back at the case of Ali Al-Timimi, if he were to file a First Amendment appeal for his conviction, using the groundings in modern philosophers and using the level of scrutiny that is precedent, the charges that got him a life sentence are protected speech and he should not be behind bars.

The actions and speech that were taken by Al-Timimi are not in debate between any of the parties involved in the case. As an expert in Islamic culture and an inspiration to many in the Muslim community, Al-Timimi became a role model for those around him. When the Al-Timimi came to the home of one of the men that would one day be known as Virginia Jihad Terrorism Network, he spoke about to the group of men about the role of Muslims in America and that tension will rise regarding their religion. He gave them information about how to get to places in the Middle East, which would one day be classified as a terrorist networks. Though there is a clear connection between the men that went to the Middle East to get the training in the terrorism camp, it is very hard to see any direct connection to the speech that Al-Timimi delivered and terrorism.

This reasoning can be justified by using dialogue that protects free speech when it comes to the freedom of expression and religious and political views. There is no evidence or admissions that Al-Timimi directly told any of the men that night to go out and kill Americans, terrorize the nation, and cause chaos. The issues that were brought up that night were legitimate concerns, which I can imagine were on the minds of many Muslims in the United States. Anytime there is a social issue, leaders across the world are looked upon for advice; this is one of those times. Zachariah Chafee says it best when he says we need to protect speech that serves the social interest. The social interest that he was protecting was those of Muslim Americans. He was touching on an issue so soon after the 9/11 attacks, they were not even being touched upon in the news media. Americans are so uncomfortable discussing conflicts when it involves culture or religion; he was advising fellow men on what to do in the future with hate and distrust shown their way in the future.  

Looking at the issue through another lens, one might say that by him telling the group of men that did have ill-will against the United States about the terrorism camps in the Middle East, it encouraged acts of terrorism. Telling someone about a location is not a crime, nor is knowing about the location a crime. Using this logic, any of us, us being Americans, knows about the location of a terrorism camp and tells anyone, we would be sent to jail. In turn, just by knowing about this location it would make it a crime. This would violate the United Declaration of Human Rights that states that we all have the rights to thought and opinion. It is also important to point out that the individuals who went to the camp have of rights that are protected in the United States Constitution and the United Declaration of Human Rights such as traveling internationally and having weapons, all of which lead to no one being harmed or injured.  This lack of harm is an important fact that can lead to a dismissal of Al-Timimi’s case.

 In the United States, we have a degree-of-danger continuum (Tedford & Herbeck p. 50) that determines the point of which the government will stop the antigovernment speech that is committed. I do not believe that the conversation that Al-Timimi had was antigovernment, but the continuum still will be used to justify the threat that was perceived by the United States for the actions that could have happened. Ever since the case of Bradenburg v. Ohio (1969), the United States has used the incitement approach to determine the time and point at which someone can be tried for political heresy. This approach identifies that the illegal act must be “both imminent and likely to occur.” It is appropriate to apply the strict scrutiny that was decided upon in this precedent in the case against Al-Timimi as well.

In the 1969 case against Ku Klux Klan leader, Clarence Brandenburg, the Supreme Court reversed the decision that convicted him of “advocating the use violence and terrorism to accomplish industrial or political reform.” A television crew had him on video speaking at a rally calling for “revengeance” against the president, the Congress, and the Supreme Court. The court said that threatening speech was protected and it was only when it was a real danger, not imaginary, that it would not be protected. In this landmark case that has continues to set the precedent to this day, this should be the scrutiny that is used by the courts in relation to First Amendment speech. Comparing both cases, both allegedly claim to engage in acts of terror to the United States. In the case of Al-Timimi, he never clear denounced his plan for terror. It was the conclusion by the courts that determined that his speech meant terrorism. This contrasts Brandenburg that clearly calls for action to participate in terror against the government. If Bradenburg can be cleared of charges that there is no real threat, even though he blatantly called for violence, then there is no reason that Al-Timimi presents a “clear and present danger.”

Of the 11 “overt acts” that were cited in the grand jury’s case against Al-Timimi, only two of them can be legitimately tied to illegal behavior that can be limited by the United States, both of which never fully discussed in any of the information in the case. The acts that seem to not pass the scrutiny principles include: (20) also advising they were obligated to help the Taliban by (21) “body, wealth, and work” and…

All of the other acts that were identified as overt acts are aspects of speech that should fully be protected. (1) speaking to Muslim men assembled peaceably in a home’ is clearly the most discriminatory overt act that was identified. In no way would this act be identified as an act that would be considered to be terrorism. Even the message of ‘(25) subsequently providing a message about Muslims being overjoyed by the crash of the shuttle Columbia’ would never be considered an act leading to terrorism. Although this would considered to be an act of speech that would not be accepted by most of the country and most Muslims, Al-Timimi has every right to say and think this.

Although I do not believe Al-Timimi belongs to a marginalized group that historically been subject to speech discrimination and the United States, I believe that post-9/11 Middle Eastern and people believed to be Muslim have been discriminated against because of appearance and race. I would say ignorance is the biggest culprit to this discrimination and I believe that people are acting in fear. This fear of another 9/11 has prompted this discrimination and it is because of public and political pressure to criminalize anything that happens to resemble terrorism. This is why Al-Timimi is in jail.

The final justification for Al-Timimi to be in jail, which I also disagree with, is designation that his conversation with the men that night resembles the Rice v. Palidin case in which constitutes specific instructions “aiding and abetting” a crime. This accusation is ridiculous because no direct crime actually happened. It was the threat of terrorism that imprisoned Al-Timimi. He never told them how to kill anyone. He never told them how to overthrow the government. He never told them how to commit a crime. He really was there to give advice. This contrasts the Hitman book that gives step-by-step instructions on how to commit the worst crime imaginable, murder. Anytime you end someone’s life, it is the means for prosecution. The book not only identified specific steps for individuals to follow, but it also was the reason for crimes to be committed. In the case of the book, it actually inspired crime. No crime ever came out of meeting that night. The only thing that came out of that meeting was a trip to Pakistan for the guys and life sentence for Al-Timimi.