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.
