Upon registering for this course, I knew I was in for something much different than any other class I’ve taken before. During Fall Quarter, I heard countless stories about the CMJR 494: Communications Rights and Law class, the numerous court cases, the legalities of child pornography and obscenities of crush videos. Coming into the class, I knew I would be exposed to controversial topics and court cases and be forced to defend my stance on each one of them. In the past, I have had the tendency to express a fairly conservative view on most issues, so I was very interested in finding out how my views would be tested in regards to different court cases. Another topic that I was interested in exploring would be the First Amendment, or the right to Freedom of Speech. Like most other people, I believe in free speech for all, however I was curious to see if there were any exceptions that would cause me to change my perspective and think about the advantages of limitations to this amendment.
Throughout the course, we employed the help of many different philosophers and their theories in hopes of defending our perspective on freedom of speech. In the beginning when I first heard about Thomas I. Emerson’s expression-action theory, I thought that I would most likely agree with his point of view. I liked the idea of expression being absolutely protected, while action receives no protection (Tedford, 438). However, when I tried to apply his philosophy to certain cases, I found that I was contradicting myself and my beliefs. The only cases in which Emerson’s philosophy was applicable and in line with my point of view involve those of slander and libel. In theory, I felt like he had many valid points and ideas, but when applied, it did not seem to fit in with my beliefs. After much research, I found that John Stuart Mill and Zechariah Chafee’s perspectives were more in line with my values. Though these two philosophers seem to have contradictory viewpoints, I believe that some of their ideas do correlate and intertwine.
An English philosopher and economist, John Stuart Mill believes in freedom of speech being justified for three reasons:
1. The censored opinion may be in error
2. Even truth needs to be challenged and tested, else it becomes a “dead dogma”
3. There is probably some truth in all opinions (Tedford, 13)
I thought it was very creative the way Mill didn’t follow suit and tell people to believe that the majority opinion is correct. As Mill said in his book, On Liberty, “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”. This is a philosophy that I feel is very important to remember because it tells us that just because an opinion is in accordance with the majority, it does not mean that the opinion is correct. It is important not to punish someone because their values are not in line with those of everyone else’s in the community. This is why in cases like the ones involving the Westboro Baptist Church, I would defend the church’s right to freedom of speech. Though I in no way agree with the Westboro Baptist Church’s views or beliefs, I do feel that they have the right to speak their opinions and have the freedom to express their personal beliefs even if it is not in agreement with my own views or the views of our society. This is only true though if their speech is in line with the harm principle. I fully believe that Mill’s harm principle is something that should be applied to all speech because to me, the safety of the people is more important than the right to express yourself any way you choose. Though I do believe that we should all have the right to freedom of speech, I also feel that our safety comes first and sometimes it is determinant on a case-by-case basis—such as the basis of the harm principle.
The second philosopher that I frequently employ the help of would be Zechariah Chafee. As a professor of law at Harvard University, Chafee proposes maximum protection for “worthwhile” speech that serves the social interest, while permitting constraints on speech that presents a clear and present danger to the community or to the nation. In short, Chafee allows the punishment of “worthless” speech, such as profanities and defamation (Tedford, 436). I liked the idea of “worthless” speech being punishable by law because I feel as though it is comparable to Mill’s harm theory. Chafee also believes in the right to free speech, especially if society can benefit from it as a whole. The only time in which free speech should not be allowed is when it takes away from the society or harms an individual or a group—such as in the case of Chaplinsky v. New Hampshire.
Philosophy has never been an interesting topic to me, however I was pleasantly surprised to find that this class was able to change my perception of that. Though sometimes confusing, the philosophies and ideas presented made me think about speech in ways that I never had before. I was also surprised to find that it was so difficult to take a stance on certain cases. Before this class, I felt that for the most part, I had a pretty solid viewpoint of looking at life but the court cases showed that the many different components makes it difficult to take sides.
In my opinion, the most fascinating cases that we discussed were the Westboro Baptist Church and child pornography. I liked learning more about the Westboro Baptist Church because I found it to be very challenging to change my stance on whether or not their speech should be banned. Before this class, I didn’t understand why they were able to protest during funerals and practice their faith since it seemed so similar to a cult. After looking into the specifics, I couldn’t help but side with the decision to allow their speech and their opinion even though it is against that of society’s. I knew that if the WBC’s speech was restricted, this leaves room for much more limitations to our freedom. The second topic I found very interesting, upsetting and confusing was the issue of child pornography. It made me extremely uncomfortable to look at the images of children portray artistically being legal. It was difficult for me to believe that the guidelines on child pornography (to me) seemed so vague and the excuse of artistic content is enough of an argument for something close to child pornography to exist.
Over the course of this quarter, this class has taught me a lot about myself and my beliefs. I learned that though one can feel that they have strong grounded values, without knowing both sides of the story, it is impossible to make an accurate judgment. I realized that my bias on many of the cases and issues discussed were because of the one sided portray of the cases in the media. After looking into the cases, I found that many of these types of expression are protected by the law and one exception can change the course of the law completely. Overall, I am very glad I was able to learn about all the different court cases we discussed and how it affected the American culture and our history in terms of free speech. I gained different perspectives on freedom of speech that I’ve never had before. The philosophies and cases are something that I can definitely take with me and put to good use—even in everyday life.
Sunday, March 14, 2010
Animal Cruelty
In the case of the United States v. Stevens, Robert J. Stevens was convicted of creating and distributing videotapes that depicted acts of animal cruelty. Two of the videos that he distributed were of dogfights involving pitbulls, while the other was of a vicious attack on domestic pig in hopes of training that particular dog to kill wild hogs while hunting. In the period of time that Stevens was selling and distributing these videos (2 years) he made roughly $20,000.
Animal cruelty and any type of harm to animals is considered illegal in all 50 states, however, does the same apply for the depiction of animal cruelty? According to past laws and events, this is considered legal due to the fact that it was never made a law before. The act itself may be illegal, but the depiction of that illegal act (or any other illegal act) is actually considered legal. The only exception in past history of a depiction of an illegal act being criminalized would be child pornography. Under New York v. Ferber, “producing or distributing speech which depicts an actual or stimulated sexual performance or conduct by minors under 16” is prohibited—which is the only event in which a restriction like this has be passed. In the court’s opinion, “distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for the government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography”.
Though child pornography has been the only case of when depiction of illegal acts is considered illegal, Robert J. Stevens was convicted of a crime for distributing videos depicting cruelty towards animals in United States v. Stevens. The jury decided that he is not guilty of animal cruelty itself, but rather the distribution of the material. Stevens’ attorney, Patricia Millett argued that this particular conviction is an infringement against Freedom of Expression since it is limiting Stevens’ right to free speech. When looking at the Court’s opinion on the prohibition of child pornography, their reasoning lies within the damage that can potentially be done to the child’s development and the reminder of the past abuse, all caught on film. On the other hand, if this same argument were used in the case of the United States v. Stevens, it wouldn’t apply since the videos would have no effect on the animals and would not harm the psyche of the animals when shown these films. As Judge D. Brooks Smith stated, “while animals are sentient creatures worthy of human kindness and human care, one cannot seriously contend that the animals suffer continuing harms by having their images out in the marketplace”. While I do believe that animals deserve to be taken care of and not harmed by humans, I also agree with the judge’s statement that the videos will not cause continual harm to the animals, in nearly the same way it would for children. This puts me in a tough position because while I find animal cruelty quite offensive, at the same time I don’t feel that an infringement on our free speech is the best course of action—since this could undoubtedly open the gateway for more restrictions on freedom of expression. The question at hand, now, would be whether or not our freedom of speech is worth the potential incitement of harm, which may follow, towards animals.
After considering both perspectives of United States v. Stevens, I would apply Zechariah Chafee’s philosophy of “worthless versus worthwhile” speech. The type of speech or expression involving the torture of and cruelty towards innocent animals should not be protected since it does not, in any way, help advance society as a whole nor does it contribute any scientific value for the good of others.
In addition to Chafee, another philosopher that I feel would apply to the case of United States v Stevens would be John Stuart Mill in regards to his harm principle and his offense principle. Mill’s harm principle states that, “each individual has the right to act as he wants, so long as these actions do not harm others”. By pertaining Mills’ principle to the harm done to animals in Stevens’ films that involved instances of dogfighting and the attacks done to the living farm pig, Stevens would be found guilty under this jurisdiction. In relation to the harm principle, Mills’ offense principle would also apply in Stevens’ case. The issue of animal cruelty is very pertinent to society and obviously offends many. The action of harming animals does not have any moral or legal grounds and ultimately has the potential to cause harm on the general public, considering animals are supposed to live in harmony with humans in our society.
I feel that, in this case involving the United States v. Stevens and other cases involving animal cruelty such as crush videos, strict scrutiny would be most appropriate. Since no laws were technically made in regards to videos depicting animal cruelty, it seems unfair to simply convict someone because their actions is not morally in tact with the morals of society. However, after reviewing the case more in depth (under strict scrutiny) I do believe that the decision in United States v. Stevens should be upheld. I believe that there is enough evidence of damage that can be done to animals as well as society by allowing the production and distribution of these videos. The depiction of violence towards animals should be criminalized because I believe it has the potential to cause harm and incite immediate harm towards animals. Though the depictions of animal cruelty have never been criminalized before, the notion of establishing additional limitations to the First Amendment is not new. For example, under Chaplinsky v. New Hampshire, the Fighting Words Doctrine was established. I believe that with the establishment of a law against the depiction of animal cruelty, society will benefit from the lack of “worthless speech” while animals will benefit from protection from further harm done unto them.
Animal cruelty and any type of harm to animals is considered illegal in all 50 states, however, does the same apply for the depiction of animal cruelty? According to past laws and events, this is considered legal due to the fact that it was never made a law before. The act itself may be illegal, but the depiction of that illegal act (or any other illegal act) is actually considered legal. The only exception in past history of a depiction of an illegal act being criminalized would be child pornography. Under New York v. Ferber, “producing or distributing speech which depicts an actual or stimulated sexual performance or conduct by minors under 16” is prohibited—which is the only event in which a restriction like this has be passed. In the court’s opinion, “distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for the government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography”.
Though child pornography has been the only case of when depiction of illegal acts is considered illegal, Robert J. Stevens was convicted of a crime for distributing videos depicting cruelty towards animals in United States v. Stevens. The jury decided that he is not guilty of animal cruelty itself, but rather the distribution of the material. Stevens’ attorney, Patricia Millett argued that this particular conviction is an infringement against Freedom of Expression since it is limiting Stevens’ right to free speech. When looking at the Court’s opinion on the prohibition of child pornography, their reasoning lies within the damage that can potentially be done to the child’s development and the reminder of the past abuse, all caught on film. On the other hand, if this same argument were used in the case of the United States v. Stevens, it wouldn’t apply since the videos would have no effect on the animals and would not harm the psyche of the animals when shown these films. As Judge D. Brooks Smith stated, “while animals are sentient creatures worthy of human kindness and human care, one cannot seriously contend that the animals suffer continuing harms by having their images out in the marketplace”. While I do believe that animals deserve to be taken care of and not harmed by humans, I also agree with the judge’s statement that the videos will not cause continual harm to the animals, in nearly the same way it would for children. This puts me in a tough position because while I find animal cruelty quite offensive, at the same time I don’t feel that an infringement on our free speech is the best course of action—since this could undoubtedly open the gateway for more restrictions on freedom of expression. The question at hand, now, would be whether or not our freedom of speech is worth the potential incitement of harm, which may follow, towards animals.
After considering both perspectives of United States v. Stevens, I would apply Zechariah Chafee’s philosophy of “worthless versus worthwhile” speech. The type of speech or expression involving the torture of and cruelty towards innocent animals should not be protected since it does not, in any way, help advance society as a whole nor does it contribute any scientific value for the good of others.
In addition to Chafee, another philosopher that I feel would apply to the case of United States v Stevens would be John Stuart Mill in regards to his harm principle and his offense principle. Mill’s harm principle states that, “each individual has the right to act as he wants, so long as these actions do not harm others”. By pertaining Mills’ principle to the harm done to animals in Stevens’ films that involved instances of dogfighting and the attacks done to the living farm pig, Stevens would be found guilty under this jurisdiction. In relation to the harm principle, Mills’ offense principle would also apply in Stevens’ case. The issue of animal cruelty is very pertinent to society and obviously offends many. The action of harming animals does not have any moral or legal grounds and ultimately has the potential to cause harm on the general public, considering animals are supposed to live in harmony with humans in our society.
I feel that, in this case involving the United States v. Stevens and other cases involving animal cruelty such as crush videos, strict scrutiny would be most appropriate. Since no laws were technically made in regards to videos depicting animal cruelty, it seems unfair to simply convict someone because their actions is not morally in tact with the morals of society. However, after reviewing the case more in depth (under strict scrutiny) I do believe that the decision in United States v. Stevens should be upheld. I believe that there is enough evidence of damage that can be done to animals as well as society by allowing the production and distribution of these videos. The depiction of violence towards animals should be criminalized because I believe it has the potential to cause harm and incite immediate harm towards animals. Though the depictions of animal cruelty have never been criminalized before, the notion of establishing additional limitations to the First Amendment is not new. For example, under Chaplinsky v. New Hampshire, the Fighting Words Doctrine was established. I believe that with the establishment of a law against the depiction of animal cruelty, society will benefit from the lack of “worthless speech” while animals will benefit from protection from further harm done unto them.
Thursday, March 11, 2010
The Tin Drum
In the movie, The Tin Drum, the life of a stunted 16-year-old boy named Oskar is portrayed. Though Oskar looks like much younger than he really is, he has the same mental capability and mindset as an adult—the only “handicap” that he has would be his physical appearance. Oskar suddenly meets a young girl named Maria who becomes his babysitter and soon after, begins falling in love with her. Maria, who is also 16, starts seducing him, which eventually leads to sexual intercourse.
Should this be considered child pornography if both of the individuals in the movie were the same age of 16? Personally, I don’t think many people would jump to the conclusion that this is considered child pornography when both people are of the same age and the intercourse was consensual—even if Oskar had a stunted appearance, he was still 16. However, in reality, the actors playing the characters in these roles have a much bigger age difference. The actor playing Oskar is only 11 years old and the actress playing Maria was 24. In this case, should this movie be considered illegal since the actor is not of age? Though they might not have actually had sexual intercourse or anything of that nature during the actual filming of the movie, stimulated and portrayal of sexual acts by children and the speech of these acts should be considered illegal.
According to both Osborne v Ohio and New York v Ferber, the movie would have been found guilty of child pornography. New York v Ferber specifically “prohibits producing or distributing speech which depicts an actual or stimulated sexual conduct by minors under 16)”. Since the actor, David Bennent at the time was only 11 years old and engaged in stimulated sexual conduct with an older female, the film and the director should be charged with child pornography. Though Osborne v. Ohio states that “actual or stimulated sexual conduct is not required”, it does say that possession and viewing is also illegal. In this case, this movie should be banned since (I feel like) it has a lewd exhibition of nudity.
In the defense that this movie should be legal since it is of artistic value, the ages of the actors should not matter. They could have easily casted two people who are both actually 16 (or close in age), or two people who are both at least 18 years old. The age of the actual actors would have no affect on the message or artistic value of the film as long as the same idea is kept: that one of the actors are stunted or have a younger appearance than the other. In my opinion, it seems very clear to me that this is child pornography since sexually explicit conduct was depicted involving a minor. I do not find child pornography or even the portrayal of child pornography artistic and I don’t think it should be considered a form of art. The Tin Drum film itself is a movie about an unstable boy from a family filled with affairs and their struggles in the World War II era. The message of the film has nothing to do with the age difference of Maria and Oskar nor does it imply child pornography. If anything, the casting on the director’s part, took away from the message of the film and directed controversy to the child porn aspect of the casting for the roles.
Also, in conjunction with the aspect of child pornography taking away from the actual message, Zechariah Chafee’s worthless versus worthwhile speech as discussed in Chaplinsky v New Hampshire would prohibit this type of film since this would technically be considered worthless speech. The huge age difference in the actors was completely unnecessary, and as mentioned before, probably took away from the powerful message of the film. At least for me it did. The way it was portrayed seemed almost lewd and very comfortable for the audience to watch. I feel that Chafee would consider this case to be worthless speech because the stimulated sexual intercourse with a minor is not beneficial to anyone nor is it of great interest to the public.
Another philosopher I would apply in this case would be John Stuart Mills’ offense principle. Since child pornography is illegal, the stimulated acts and the portrayal of a minor engaging in sexual conduct would be considered offensive to many people. I personally would not be comfortable watching this movie, knowing that a minor was involved in these acts. Though the 11 year old actor at the time may have agreed to do these scenes at the time, he was a child and thus had no idea of what the repercussions may be. I think children at the time would not have the mental capability to think straight and understand the consequences of their actions. A movie like this, or anything pertaining to child pornography, can be very damaging to their development. Therefore, I feel that Mills’ offense principle should also be applied in this case.
In conclusion, I feel that The Tin Drum should be banned and be considered child pornography due to the fact that it involves fairly lewd and disturbing scenes of sexual conduct involving a minor. It would make most viewers uncomfortable to watch and the age difference of the actors take away from the message and the artistic value of the film itself. Even if the actors themselves did not have any type of intercourse, the stimulation of the act should be enough for the film to be punished.
Should this be considered child pornography if both of the individuals in the movie were the same age of 16? Personally, I don’t think many people would jump to the conclusion that this is considered child pornography when both people are of the same age and the intercourse was consensual—even if Oskar had a stunted appearance, he was still 16. However, in reality, the actors playing the characters in these roles have a much bigger age difference. The actor playing Oskar is only 11 years old and the actress playing Maria was 24. In this case, should this movie be considered illegal since the actor is not of age? Though they might not have actually had sexual intercourse or anything of that nature during the actual filming of the movie, stimulated and portrayal of sexual acts by children and the speech of these acts should be considered illegal.
According to both Osborne v Ohio and New York v Ferber, the movie would have been found guilty of child pornography. New York v Ferber specifically “prohibits producing or distributing speech which depicts an actual or stimulated sexual conduct by minors under 16)”. Since the actor, David Bennent at the time was only 11 years old and engaged in stimulated sexual conduct with an older female, the film and the director should be charged with child pornography. Though Osborne v. Ohio states that “actual or stimulated sexual conduct is not required”, it does say that possession and viewing is also illegal. In this case, this movie should be banned since (I feel like) it has a lewd exhibition of nudity.
In the defense that this movie should be legal since it is of artistic value, the ages of the actors should not matter. They could have easily casted two people who are both actually 16 (or close in age), or two people who are both at least 18 years old. The age of the actual actors would have no affect on the message or artistic value of the film as long as the same idea is kept: that one of the actors are stunted or have a younger appearance than the other. In my opinion, it seems very clear to me that this is child pornography since sexually explicit conduct was depicted involving a minor. I do not find child pornography or even the portrayal of child pornography artistic and I don’t think it should be considered a form of art. The Tin Drum film itself is a movie about an unstable boy from a family filled with affairs and their struggles in the World War II era. The message of the film has nothing to do with the age difference of Maria and Oskar nor does it imply child pornography. If anything, the casting on the director’s part, took away from the message of the film and directed controversy to the child porn aspect of the casting for the roles.
Also, in conjunction with the aspect of child pornography taking away from the actual message, Zechariah Chafee’s worthless versus worthwhile speech as discussed in Chaplinsky v New Hampshire would prohibit this type of film since this would technically be considered worthless speech. The huge age difference in the actors was completely unnecessary, and as mentioned before, probably took away from the powerful message of the film. At least for me it did. The way it was portrayed seemed almost lewd and very comfortable for the audience to watch. I feel that Chafee would consider this case to be worthless speech because the stimulated sexual intercourse with a minor is not beneficial to anyone nor is it of great interest to the public.
Another philosopher I would apply in this case would be John Stuart Mills’ offense principle. Since child pornography is illegal, the stimulated acts and the portrayal of a minor engaging in sexual conduct would be considered offensive to many people. I personally would not be comfortable watching this movie, knowing that a minor was involved in these acts. Though the 11 year old actor at the time may have agreed to do these scenes at the time, he was a child and thus had no idea of what the repercussions may be. I think children at the time would not have the mental capability to think straight and understand the consequences of their actions. A movie like this, or anything pertaining to child pornography, can be very damaging to their development. Therefore, I feel that Mills’ offense principle should also be applied in this case.
In conclusion, I feel that The Tin Drum should be banned and be considered child pornography due to the fact that it involves fairly lewd and disturbing scenes of sexual conduct involving a minor. It would make most viewers uncomfortable to watch and the age difference of the actors take away from the message and the artistic value of the film itself. Even if the actors themselves did not have any type of intercourse, the stimulation of the act should be enough for the film to be punished.
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