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.”