In the United States, freedom is a right that citizens are able to enjoy; this right creates the world we live in that is made up of a diverse range of values, beliefs and traditions. While this is something to be proud of, it also creates the inevitability that we are going to disagree with each other and things we express can and will offend others. Freedom of speech is a right that we should be proud of and exercise, and in a perfect world it would be easy to say citizens of the United States should be able to express whatever they want, whenever they want, through whatever medium they choose.
Consider however, a dorm mate who posts revealing videos that potentially drive their roommate to suicide; an adult man who sells images of children in sexually inquisitive positions; a group of protestors who taint your child’s funeral because they disagree with how they lived their lives. In cases like this, it becomes more difficult to protect free speech and agree with Edwin Baker’s “liberty theory” which states “The liberty model holds that the free speech clause protects not a marketplace, but rather an arena of individual liberty from certain types of governmental restrictions. Speech or other self expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” (Tedford, 441) To define what I believe should be the line that protects or punishes speech, I would like to begin by using 19th century philosopher John Stuart Mill’s ideas for philosophical grounding.
Mill’s Harm Principle is presented in “Freedom of Speech,” where Mill argues that liberty should exist where we have “absolute freedom of opinion and sentiment of all subjects, practical or speculative, scientific, moral or theological.” I extremely agree with this; no matter the subject, free speech allows for the broadening of ideas and this is ultimately good for society as a whole. Mill does make the exception however, saying that “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.” In order to adapt this concept to my argument, harm will be defined as an action that directly and in the first instance invades the rights of a person. Mill’s principle is best explained through his corn dealer reference, where he says that it is acceptable to claim that corn dealers are starving the poor if it is expressed through the medium of a printed page; it is not acceptable to express the same view to an angry mob gathered outside the house of the corn dealer ready to explode. The difference between the two is that the second instance instigates a mischievous act and puts the corn dealer in danger. Furthermore, Mill distinguishes between legitimate and illegitimate harm. Legitimate harm causes a clear and direct violation of rights. Mill’s Harm Principle is useful in cases with libel laws, advertising blatant untruths about commercial products, or advertising dangerous products to children.
This strategy is not always easy to apply either. For instance, in Snyder v. Phelps, the Westboro Baptist Church protested at a soldier’s funeral, waving signs expressing their extremely negative opinions about homosexuality within the military. While the group stayed within the area and time limits sanctioned by law, the soldier’s father (Snyder) argued that their actions caused “emotional distress.” Initially, Snyder was awarded in the dispute. However, the 4th U.S. Circuit Court of Appeals threw out the verdict deciding that the protest was protected under the First Amendment. The case is currently being decided by the Supreme Court. To say the least many can agree that the comments expressed by the “most hated family in America” were distasteful; but for the sake of protecting the value of free speech in protests and avoiding the potential social harm that can be caused by punishing the WBC’s speech, I would argue that emotional distress is simply not enough to fall under the category of “harm” as defined earlier. For example, referring back to the corn dealer; exposing them may cause harm to their reputation and lead to severe financial hardship if he is accused of starving the poor. Financial hardship is likely to cause emotional distress; but limits on free speech should not be sanctioned by the simple fact that someone is harmed in some way; as stated earlier, their rights must be clearly and directly violated. Therefore, I would protect the Westboro Baptist Church’s speech and also limit harm to bodily harm and not include emotional distress.
Another First Amendment theorist Thomas I. Emerson would likely protect these protestor’s speech as well. Emerson distinguishes between expression and action, also acknowledging the value of free speech which leads to individual self-fulfillment, discovers truth, allows for a means of making decision democratically, and helps achieve a more adaptable and therefore stable community. (Tedford, 438) The prevalent idea behind Emerson’s “expression-action theory” is the line between expression and action. “Expression” must be freely allowed and encouraged. “Action” on the other hand, can be controlled. Emerson explores four different problem areas where the line between expression and action can be obscure; Sedition, defamation, obscenity, and provocation to anger. Emerson protects all four categories with the exception of some circumstances. Using the example of Snyder v Phelps, because Emerson will protect defamation unless it is done privately, he will probably also protect speech against the “emotional distress” claim. Similarly, when anger is “provoked,” speech is generally protected because the audience has a duty to restrain itself. On the other hand, in a direct encounter, so as to provoke a fight, speech may be considered action and can be punished. Because the WBC did not participate in any direct speech with the Snyder family, Emerson and Mill are both likely to protect their speech.
The 2003 Virginia v Black (Tedford 181) faces this issue of harm, where the Supreme Court punished “true threat” which is expression directed at a person or group of persons and directly places the victim in fear of bodily harm or death. “True threat” is not protected by the First Amendment. Speech that actually does lead to harm is obviously easier to punish because evidence of harm is actually visible; emotional distress seems too difficult to prove and if speech were punishable due to emotional distress, people could say they were emotionally distressed even if they weren’t; and the level of emotional behavior that arises varies from person to person therefore is difficult to measure.
The Universal Declaration of Human Rights states that “all members of the human family” have certain “equal and inalienable rights” and there should be “no distinction of any kind” made in those rights, regardless of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” and that there should be “no distinction made on the basis of political, jurisdictional or international status.” These ideas are appealing but are unrealistic in the fact that while they acknowledge the fact that diverse human being practices exist, they only state the idea that freedom of speech is a human right without limits. Furthermore, they fail to illustrate the idea that despite the notions presented by the Declaration, communities can establish their own standards. Take for instance, the federal obscenity law the U.S. has; there is no national standard, but a legal precedent (Miller v. California). This suggests that First Amendment protections of free speech vary by location within the U.S, and as seen in cases such as the Danish cartoons or the filming of Sex and the City 2 in Dubai, within the world. While it would be nice to say that freedom to exercise speech should be a innate right despite location, I suppose certain laws restricting speech in different areas have their appeal as well, and if a speaker violates those laws within that location, they should be subject to punishment.
In terms of who should bear most of the legal responsibility for offensive or harmful speech, I think this burden depends on intent, but some libel laws put more burden on some plaintiffs and not others to win punishment of the speaker. In New York Times v Sullivan, a NY Times ad ran that suggested the arrest of Rev. Martin Luther King, Jr. in Alabama was part of a conspiracy to stop King’s efforts. Sullivan was the Montgomery city commissioner who filed a libel action against the newspaper and endorsers of the ad and claimed that the ad defamed him personally. Alabama law stated that Sullivan did not have to prove he had been harmed, so he was initially awarded; the Supreme Court later reviewed the case and overturned the decision, protecting the NY Times ad.
Since this case, a public official or someone who has voluntarily put themselves in front of the public eye must prove that a libelous statement was made with actual “malice,” or “knowledge that it was false or with reckless disregard to whether it was false or not.” Mill’s Harm Principle would again, support these ideas, as it is applicable to libel laws and advertising blatant untruths.
Chaplinsky v New Hampshire was a 1942 case that signified the division of expression into two categories 1) that which has social value as a step to truth (worthwhile speech) and 2) that which has no social value as a step to truth (worthless speech), which also illustrates the philosophical reasoning of Zechariah Chafee, Jr. This “worthless” speech includes fighting words, and language that is lewd, obscene, profane and libelous. The “fighting words” category is divided into two parts: language that 1) inflicts injury upon the listener or 2) tends to “incite an immediate breach of the peace.” I can understand why people would be drawn to Chafee’s ideas and these results from Chaplinsky v New Hampshire. However, I think that this reasoning can lead to too many misinterpretations of what kind of speech is worthless, especially when freedom of speech laws vary from state to state. Having said this, I do think there are situations in which speech can be deemed “worthless” (but again, people can disagree with whether or not they think it actually is). For instance, the “animal crush” videos we viewed in class are extremely worthless to me, yet in cases where they are used by PETA can be beneficial to society in showing animal cruelty—Chafee would also call this “worthwhile” speech because it “serves the social interest.” (Tedford, 436)
What seems to be more useful to me if the government’s use of scrutiny levels. For example, in the 1969 case Brandenburg v. Ohio, where a man was arrested for words spoken in front of a burning cross. The government used strict scrutiny in which speech must incite imminent and immediate violence to be punished and Brandenburg’s speech was protected. I would accept the exceptions such as in Dennis v U.S. however, and apply minimal scrutiny where speech is directly threatening national security. We explored the case of Ali Al-Timimi, in which I would also apply minimal scrutiny because of the time frame of his speech which I believed to be threatening to national security. However, I know this contradicts my ideas of punishing speech only if it causes “direct harm.”
My ideas of just communication were challenged this quarter and while I mainly seemed to refer back to Mill, I still can truthfully say determining just speech or what is punishable and what is not is difficult and always will be. For example, I would not protect child pornography but would also not punish a child who creates it in the same way I would an adult. Furthermore, if “sexting” is determined to be child pornography (which I argue it is not), I am again contradicting myself because I would protect it. Exploring different cases and principles really challenged those of my own, and allowed me to think outside of my comfort zone. I think this is the biggest thing I can take away from the course; although I already knew other groups of people think much differently than I do, to actually analyze different cases and apply philosophies, scrutiny levels, and tested my own ideas to what actually is communication justice. Ultimately, I believe it is a universal human right; but the cases presented above display my ideas of the rare occasions to when punishment should be applied.