Senior Synthesis

As a professional communicator I consider freedom of speech the most fundamental right awarded to American citizens. That being said, it wasn’t until this class that I evaluated this right with the level of scrutiny required to pass this course. Over the past ten weeks we have analyzed numerable court cases and several philosophers in order to answer questions regarding freedom of speech in an absolute way. All of this was to answer one single question “What is communication justice?” After reviewing all avenues of protected and unprotected speech I believe I have an answer to this complex question. To me communication justice is protecting all speech through every medium unless that speech inflicts imminent danger on another human being. This blog will be dedicated to exploring this answer in a more complete manner. My main rationalization for this conclusion is grounded in the UDHR Article 1 which states that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 19 of the UDHR states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” It is my belief that Freedom of Speech in this country needs to go back to being based on these fundamental principles, principles they have abandoned.

It’s interesting; this entire quarter I have been a huge fan of philosopher Thomas Emerson who stated in his work The System of Freedom of Expression that “Expression must be freely allowed and encouraged and gets absolute protection. Conduct that includes “action” has no protection. Four problem areas are dealt with by defining what is expression and what is action: sedition, defamation, obscenity, provocation to anger.” However, after completing the entire course I realized that I want even this type of speech protected. I had the opportunity to take a step back and look at the whole picture and what I found was that I want to protect all speech regardless of content and medium. As I stated before I think this country should realign itself with the principles of the UDHR stated in Articles 1 and 19. Thus, taking that step back helped me realize that I needed to align myself with political philosopher and former professor of law and communication at the University of Pennsylvania, C. Edward Baker. Baker believed that “The free speech clause protects not a marketplace, but rather an arena of individual liberty from certain types of government restrictions. Speech of other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” Baker’s philosophy is in direct opposition with a theorist I disagree with most, Zechairah Chafee Jr. Chaffee believed that speech deemed worthless should not be protected by the government as strongly, while worthwhile speech should be protected. It is his philosophy that was the foundation for the ruling of the Chaplinsky v. New Hampshire case that I will later be arguing to overturn. It is Baker’s philosophical approach that best represents the principles held by the UDHR and that is why I have chosen his approach as a lens to analyze freedom of speech in this country.

Since it is essentially the government that will be deciding whether or not to protect certain speech, it should be the government who bears the burden of proof. The audience participating in their first and fourteenth amendment rights should not have to bear this burden. In order for speech to be ruled unprotected, the government must provide a compelling reason to regulate or punish speech. This strict scrutiny must have restrictions that are not overly broad or vague. With this level of scrutiny, the government must show that there is a direct incitement of illegal conduct that is both very likely to occur and is going to occur imminently. In other words the government must show that there is a “true threat” a term established in the case Virginia v. Black. In this case it was established that a “true threat” is

“[t]hose statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”

The Supreme Court held the opinion that the “[s]peaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

Thus, unless speech involves a “true threat” it should be protected. My only exception is in libelous cases. While in these cases I still would use strict scrutiny, I believe that the burden of proof should be transferred from the government to the plaintiff.

Even with this exception I am still in support of the UDHR. For in the UDHR Article 12 is states that

“[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Therefore, personal libel laws should only lose protection when actual malice can be proven to show that the speaker knew the statement to be false or acted in reckless disregard of whether the statements they made were true or false based on strict scrutiny. This reasoning follows the definition of “actual malice:”

"[K]nowledge of falsity or reckless disregard as to truth or falsity." Therefore, the speaker is liable for alleged libelous speech if such speech proves to be intentionally malicious. So, in order for such speech to be proven one of two things needs to be proven of the speaker: first that they knew the statement they made was false and second that they acted in reckless disregard toward truth or falsity of the statement.

This definition was established in the 1964 court case New York Times v. Sullivan where the court ruled in favor of the New York Times. Sullivan a public figure in Montgomery, Alabama believed that he was defamed in a New York Times article titled “Heed Their Rising Voices.” It is important to note that Sullivan was not explicitly named in the article. However, he believed that he was indirectly referred to. The Supreme Court ruled that proof of mere negligence did not provide enough evidence to sue for damages, but held that:

“A state cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

There are three Supreme Court cases that I will be using in order to explicate my form of communication justice and they are: Chaplinsky v. New Hampshire, New York v. Ferber and Brown v. Entertainment Merchants Association. I decided to use these three landmark cases because each case sets the stage for how far I am willing to go to protect freedom of expression.

In the 1941 court case Chaplinsky v. New Hampshire the Supreme Court ruled unanimously to uphold Chaplinsky’s arrest. Before providing the reasoning of the Supreme Court, let me first provide the background to this case. Walter Chaplinsky, a Jehovah’s Witness was using the public sidewalk passing out pamphlets while calling all religion a “racket.” Because Chaplinsky’s actions were causing a disturbance a traffic officer on duty removed Chaplinsky from the scene. On the way to the police station Chaplinsky encountered Marshal Bowering who gave Chaplinsky a second warning not to cause a public disturbance and that’s when Chaplinsky said “You are a God-damned racketeer" and "a damned Fascist.” Writing the decision for the Court Justice Frank Murphy said:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

This ruling is clearly based on Zechairah Chafee’s philosophical approach which makes a distinction between worthless and worthwhile speech. According to Chafee’s philosophical approach, speech that is in the social interest should receive high protection. But speech that is purely in the individual’s interest is of “slight social value as a step toward truth” and may be more freely censored or punished, especially if it is indecent, profane, or defamatory. This kind of speech must yield to the “order, morality, the training of the young and the peace of mind of those who hear and see. As stated earlier Chafee’s philosophy is in direct opposition of the philosophical approach that I stand by which is Baker. You see Baker does not make this distinction between worthless and worthwhile speech, therefore these areas of speech would be fully protected. Therefore, it stands to reason why I would disagree with the Supreme Courts ruling in this case. In addition the level of scrutiny used in this case was intermediate scrutiny meaning that government must prove it has a “substantial” reason to regulate or punish speech. Had the government been required to use strict scrutiny they would have not been able to punish Chaplinsky because the government could not prove that they had a “compelling” reason to punish his speech.

Though Chaplinsky was causing a disturbance his actions were not putting anyone in imminent danger. Stated another way, had Chaplinsky’s actions been put to the “true threat” test such actions would have failed to pass, thereby leaving no grounds for his arrest. People should have a constitutional right to say whatever they wish as long as such speech does not put anyone in direct and imminent danger. Chaplinsky’s speech coincided with Baker’s individual liberty theory and therefore it should have been protected.

The second case I want to address in regards to freedom of speech is the 1982 case New York v. Ferber where the Supreme Court ruled to uphold the conviction. In this case, two storeowners in the state of New York were convicted of selling a film with two boys masturbating to an undercover police officer. The Supreme Court upheld the conviction of the two store owners arguing that the state’s interest in protecting children allows the prohibition of distributing or producing speech which depicts an actual or simulated performance or conduct of a child, even when the content does not meet the test of obscenity as described in Miller v. California. The Supreme Court held that sexual performance and conduct would be defined as:

A "[s]exual performance" is defined as "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age."

"Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals."

“A performance is defined as "any play, motion picture, photograph or dance" or "any other visual representation exhibited before an audience."

Further, the Supreme Court laid out its reasoning in allowing the states leeway in the regulation of pornographic depictions of children.

“It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological well-being of a minor" is "compelling." "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.”

The Supreme Court gave further evidence of such reasoning in cases such as Prince v. Massachusetts, Ginsberg v. New York and FCC v. Pacifica Foundation where the Court felt it necessary to protect children from exposure to non-obscene materials.

I feel it’s important to take a brief look into these cases since the Supreme Court used them as evidence to support their reasoning into the New York v. Ferber case. In regards to the Prince v. Massachusetts case the Supreme Court ruled that the state has a right to intervene when a parent is violating child labor laws. The focus here is not whether or not the parent was indeed guilty but whether the state has a constitutional right to intervene in order to protect children. This case deals with the First Amendment rights because the mother along with her children was selling Jehovah’s Witness pamphlets, thus exercising their right to freedom of religion as stated in the First Amendment. Under strict scrutiny the state government would fail to convict Mrs. Prince. I recognize that the courts reasoning was based on the children’s safety on the streets but again under strict scrutiny they would have failed to prove that the children were in imminent danger. We must be extremely careful in letting the government come in and parent our children.

In the 1968 case Ginsburg v. New York the Supreme Court ruled that states may prohibit sale of magazines depicting non-obscene “pictures which depicts nudity and which is harmful to minors, and any magazine which contains such pictures and which, taken as a whole, is harmful to minors." In this case there was no SLAPs (scientific, literary, artistic, or political value) clause exception which is something I disagree with. Again, under strict scrutiny the Supreme Court would have failed to prove that the 16 year old would have imminent danger befall him. In addition to this, I would allow a SLAPs exception in this case.

And finally the 1978 case FCC v. Pacifica where the Supreme Court ruled in favor of the FCC stating that indecent language may be banned from broadcast between the hours of 6a.m. to 10p.m. Again, there was no SLAPs exception. While I’m not in support of creating categories of what is considered worthless speech I am certainly not in favor of creating extra categories of unprotected speech. This is yet another example of the government stepping in to try and parent our children. With rating systems already in place to aid parents in determining what their children should and should not be viewing I think this extra level of security is unwarranted. As far as radio in concerned it is my opinion that radio stations do a good job in informing parents whether their station is “kid friendly” In the instance that parents do come across a broadcast that is inappropriate they have the power to instantly change the station. There is no level of pervasive presence that the parents cannot overcome.

Going back to the case at hand, I agree that children should get protection under the law, however I do not fully agree with the Courts reasoning in the New York v. Ferber case. In order for the government to avoid strict censorship child pornography laws should not be too far separated from adult pornography laws. Child pornography laws should have the possibility of being protected as art through SLAPs as described in Miller v. California. I also believe that such works should be valuated as a whole and not by its subsequent parts. That being said I agree with the definition laid out by the court which defines child porn as “an actual or simulated sexual performance or conduct by minor under 16.” Further, I argue that the content must past the Miller Test also known as the Three Pong Obscenity Test:

-Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

-Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

However I do feel this definition protects people, like parents, from prosecution for taking pictures of their naked children.

This leads me into my third and final case that I will be evaluating. The 2011 case Brown v. Entertainment Merchants Associations the Supreme Court ruled that California's ban on the sale or rental of violent video games to minors is unconstitutional. Finally, a judgment I can stand behind! In this case “[r]espondents, representing the video-game and software industries, filed a pre-enforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.” The reasoning for this judgment was as follows:

“(a) Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And "the basic principles of freedom of speech ... do not vary" with a new and different communication medium”

“(b) Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny

The advancement in technology cannot be used as a viable reason to further infringe on our First Amendment rights. We need to go back to the principles laid out in the UDHR which states that everyone has the right to freedom of expression and opinion as well as the right to seek such information through ANY form of media without any interference. The advances in technology should not deter us from this fundamental principle. Further, I argue that the reasoning and the level of scrutiny used in this case should be used in other cases regarding communication through various mediums.

As I see it, since I am promoting a strict scrutiny on all levels of speech, my approach would be considered a maximum level of what is considered communication justice. Since my form of communication justice is the maximum level, the minimum level of communication justice that I would adopt and accept as a universal right would be William Blackstone’s version of Freedom of Expression. Blackstone argued that as long as there were no prior restraints on speech such as no licensing before you could speak, then the government was free to punish whatever kind of speech it wanted to once that speech was published (using, for example, strict liability approaches for libel, bad tendency & minimal scrutiny levels, etc).

Before I conclude this synthesis I want to bring your attention back to the exception I made in regards to libelous speech. I need to do this because there is another level to this exception that must be addressed because it is the one of two areas where my model falls apart. Approximately 10 years after the New York Times v. Sullivan case, the libel, also known as defamation, laws in the country changed. In 1974 the Gertz v. Welch case the Supreme Court ruled on the current two-tier approach to defamation laws:

(1) [p]ublic officials, limited public figures, and all-purpose public figures would have to prove actual malice/reckless disregard in order to collect damages for libel, BUT (2) private individuals would have to prove only negligence. For private individuals, that meant an increase in the burden of proof beyond the old strict liability rules, but not an increase all the way to the heavy reckless disregard burden of proof.

The reasoning for the Supreme Courts decision was that “[b]ecause private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures; they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery.”

The purpose of bringing this up is that I find myself in agreement with the courts reasoning. Thus, it must be brought to your attention because this line of reasoning and the ruling of the court are in opposition to my model of communication justice. This is the first area where my model falls apart. The second area of my model where I find myself in disagreement is in child pornography. As stated earlier, in this case I would allot for obscenity to become the exception to the rule. If the content failed to pass the Miller Test it should be unprotected. However, I need to emphasize that this is the only area where I would allot for obscenity to go unprotected.

As I stated in the beginning of this synthesis, I consider freedom of speech to be one of the fundamental rights awarded to Americans. Through this evaluation of what communication justice means to me I was able to construct an overall theme. What is most important is that this country fosters an environment where speech and expression are protected in order to yield greater individual self-fulfillment. Protecting all speech through every medium unless that speech inflicts imminent danger on another human being should be a fundamental principle followed in this country. It is my belief that Freedom of Speech in this country needs to go back to being based on the fundamental principles laid out in the UDHR, principles they have abandoned.

Protection of Indecent Speech (Re-Post)

With advancements in technology new ways in communicating have arisen through the pipeline which gives people new avenues in which to participate in their First Amendment rights. As these new technologies arise the Supreme Court continues to struggle in maintaining and upholding the 1942 Chaplinsky v. N.H. court ruling which stated that “worthless” speech would not be protected under Freedom of Speech. Such worthless speech includes fighting words, profane, lewd, or obscene speech. For this weeks blog we are looking at a new category of speech that has been added to the list of worthless speech and that is indecent speech. This new category is only being applied to the mediums of television and radio but that doesn’t mean it’s constitutional. While I am against the whole notion of worthless verses worthwhile speech I will specifically argue this particular form of speech should be protected. We cannot let the advancement in technology be used as an excuse by the Supreme Court to further infringe on our First Amendment rights.

Before going into the reasoning of the Supreme Court in the case of Fox Television Stations v The FCC let me first provide background. The legal dispute began after the 2002 Billboard Music Awards. The live show included two incidents of profanity. The first incident took place when Cher while accepting an award used an obscenity and the second occurred when Nichole Richie presented an award. The next year at the 2003 Golden Globe Awards U2’s Bono used the f-word during his acceptance speech. Again in 2004 the Super Bowl halftime show starring Janet Jackson and Justin Timberlake there was a wardrobe malfunction that was responsible for exposing Janet’s breast. With all of these incidents the FCC has been considering expanding the definition of indecent speech which would further infringe on broadcasters First Amendment rights.

In order to better understand the context in regards to the courts approach to the FCC v. Fox Television Station, we need to look at the 1978 case FCC v. Pacifica when the ruled in favor of the FCC stating that indecent language may be banned from broadcast between the hours of 6a.m. to 10p.m. Before I provide the reasoning of this verdict, I need to provide the full background story. Pacific Foundation radio ran an afternoon broadcast of a satiric monologue entitled “Filthy Words” which listed and repeated words that are not allowed to be spoken on public broadcast. There was a warning given to listeners as to the nature of the speech before the monologue began but a father sitting the car with his young son missed the warning. As a result, the father filed a complaint with the Federal Communications Commission (FCC). After reviewing the facts “The FCC characterized the language of the monologue as “patently offensive,” though not necessarily obscene” and decided that such language should be regulated during the hours that children are most likely listening. They found the power to regulate such broadcasting under the 18 U.S.C 1464 which forbids any use of "any obscene, indecent, or profane language by means of radio communications." The reasoning for this verdict was:

1) “broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.”

2) “broadcasting is uniquely accessible to children, even those too young to read.”

3) “narrowness of holding: time of day, context of show, differences between radio, television, and perhaps closed-circuit transmissions”

It must be noted here that the “Filthy Words” monologue was considered indecent because the words were repeated multiple times throughout the broadcast. This left words stated only once under questioning as to whether they were considered indecent. However, we will see later that the FCC expanded the definition of indecent words to include “patently offensive” words only stated once.

Dissenters from this ruling included Justice William Brennan who opposed the creation of the category of banned indecent speech for broadcast under the argument that the audience chooses to receive such broadcasts and is not considered a captive audience. I tend to agree with this opinion because even though the father missed the warning he still has the power to change the station.

Before we go any further, there needs to be a single philosophical approach with which to best analyze this issue as well as the level of scrutiny to place on laws against suppression of speech. In addition to this the definition and idea of censorship needs to be discussed in order to determine whether the FCC v. Pacifica case can be ruled unconstitutional.

Of all the philosophical approaches used in freedom of speech cases in the past, I find myself continually using Thomas Emerson’s approach which is that all “expression must be freely allowed and encouraged, and has earned an absolute right of protection. However, speech that includes ‘action’ has no protection.” The doctrinal level of scrutiny in this instance should be strict scrutiny which means that the FCC must prove it has a compelling reason to regulate or punish the speech and the restriction is not overly broad or vague & advances government interest. This level of scrutiny coincides with the “true threat” test which was defined in the Supreme Court in the 2003 case Virginia v. Black. A “true threat” is defined as, “[t]hose statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”

If we were to put this test against the FCC v. Pacifica case, the FCC would fail. Under strict scrutiny there is no compelling reason or evidence that the FCC can provide showing that listening to indecent language on the radio causes a “true threat” towards children. Even though the father missed the warning given before the broadcast he still had the power to instantly switch the radio station. It should not be the job of the FCC and other government agencies to parent our children. All the father had to do was change the station and talk to his child. It must be stated that it was only by applying intermediate scrutiny (a substantial government interest in protecting children) that Pacifica was upheld.

Now, in regards to censorship, the legal definition is the suppression of ideas or images by the government or others with authority. In 1934 there was a Communications Act that was passed regarding radio broadcasting. Under section 326 within Title III “prevents the commission from exercising censorship over broadcast stations.” However provisions in the U.S. code link to the Communications Act under title 18, 1464 of the U.S. code "bars individuals from uttering obscene or indecent language over a broadcast station.” Now, these two provisions can be seen as being in direct contradiction to each other. However the opinion of the court in the FCC v. Pacifica case states that

“The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.”

So in other words, according to the court the FCC is not in violation of censorship because they did not prevent the monologue from airing. I completely disagree with this assessment. Whether you prevent a broadcast from airing or promise to fine and or jail time for that broadcast after-the-fact its still censorship. Censorship and self-censorship is in many ways the same thing. Self-censorship is the decision not to say or write something because it might cause problems for the individual themselves or for others. Self-censorship is still censorship because ideas are still being suppressed which according to the First Amendment is entirely unconstitutional. It also goes against Article 19 of the UDHR which states that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through ANY media and regardless of frontiers.”

Since this ruling the courts have been back and forth on this decision. In fact, “Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since.” That is until now. On July 13, 2010 a federal appeals struck down the FCC’s policy on indecency stating that “regulations barring the use of “fleeting expletives” on radio and television violated the First Amendment because they were vague and could inhibit free speech.” In a unanimous decision the Court of Appeals for the Second Circuit in New York stated the FCC’s current policy established “a chilling effect that goes far beyond the fleeting expletives at issue here” because it left broadcasters without a reliable guide as to what language the FCC would deem offensive.

This decision came as a result from the FCC issuing a stricter policy regarding what constituted as indecent words. Before the policy had to do with repetition of words that were considered indecent. But, because of ongoing controversy involving celebrities like Bono and Cher uttering the f-word on live television, the FCC decided to expand their definition to indecent words only uttered once. However, because of this expansion and the continuous undecided specific meaning of the word indecent the courts have ruled that the FCC needs to decide on a definitive definition that will allow broadcasters to definitively know what they can and cannot say.

Regardless, the 2009 case FOX v. FCC the 2^nd Circuit court ruled in favor of protecting fleeting expletives and the FCC (expanded) indecency policy was ruled void for its vagueness. In addition to that FCC v. Pacifica ruling was called into question. The reasoning for this ruling was presented as follows:

“[T]he court pointed out that the Commission’s definition of indecent speech would prohibit ‘the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.’ Such a result, the court concluded, amounted to unconstitutional censorship.”

“[F]inding the single utterance of the F-word not indecent because it was a “fleeting and isolated utterance which, within the context of live and spontaneous programming, does not warrant a Commission sanction”

It is well-established that indecent speech is fully protected by the First Amendment.

Reno v. ACLU “Where obscenity is not involved . . . the fact that protected speech may be offensive to some does not justify its suppression.

The reasons for questioning the Pacifica case were as follows:

“The option to block reduces the likelihood, so concerning to the Court in Pacifica,

that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt”

This reasoning further supports my argument that advancement in technology cannot be used as a viable reason to further infringe on our First Amendment rights. We need to go back to the principles laid out in the UDHR which states that everyone has the right to freedom of expression and opinion as well as the right to seek such information through ANY form of media without any interference. The advances in technology should not deter us from this fundamental principle.

Protection of Indecent Speech

Freedom of speech is a right awarded to all Americans. It grants people the right to freely express their opinions and ideas without censorship. However like most other freedoms, free speech does not come without certain restrictions. In the 1942 case Chaplinsky v. N.H the court ruled that “worthless” speech would not be protected under Freedom of Speech. Such “worthless” speech includes fighting words, profane, lewd, or obscene speech. Since that ruling there has been constant debate regarding “worthless” speech and whether it is unconstitutional to prevent such speech as it infringes upon a person’s right to freedom of expression. A separate but related debate is the censorship of speech through different mediums. As I see it, all speech should be protected as long as such speech does not cause imminent danger on another human being regardless of the medium in use for such speech.

In the 1978 case FCC v. Pacifica the court ruled in favor of the FCC stating that indecent language may be banned from broadcast between the hours of 6a.m. to 10p.m. Before I provide the reasoning of this verdict, I need to provide the full background story. Pacific Foundation radio ran an afternoon broadcast of a satiric monologue entitled “Filthy Words” which listed and repeated words that are not allowed to be spoken on public broadcast. There was a warning given to listeners as to the nature of the speech before the monologue began but a father sitting the car with his young son missed the warning. As a result, the father filed a complaint with the Federal Communications Commission (FCC). After reviewing the facts “The FCC characterized the language of the monologue as “patently offensive,” though not necessarily obscene” and decided that such language should be regulated during the hours that children are most likely listening. They found the power to regulate such broadcasting under the 18 U.S.C 1464 which forbids any use of "any obscene, indecent, or profane language by means of radio communications. The reasoning for this verdict was:

1. “[B]roadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.”
2. “[B]roadcasting is uniquely accessible to children, even those too young to read.”
3. “[N]arrowness of holding: time of day, context of show, differences between radio, television, and perhaps closed-circuit transmissions”

It must be noted here that the “Filthy Words” monologue was considered indecent because the words were repeated multiple times throughout the broadcast. This left words stated only once under questioning as to whether they were considered indecent. However, we will see later that the FCC expanded the definition of indecent words to include “patently offensive” words only stated once.

Dissenters of this ruling included Justice Brennan who opposed the creation of banned speech under the argument that the audience chooses to receive such broadcasts and is not considered a captive audience. I tend to agree with this opinion because even though the father missed the warning he still has the power to change the station.

Before we go any further, there needs to be a single philosophical approach with which to best analyze this issue as well as the level of scrutiny to place on laws against suppression of speech. In addition to this the definition and idea of censorship needs to be discussed in order to determine whether the FCC v. Pacifica case can be ruled unconstitutional.

Of all the philosophical approaches used in freedom of speech cases in the past, I find myself continually using Thomas Emerson’s approach which is that all “expression must be freely allowed and encouraged, and has earned an absolute right of protection. However, conduct that includes ‘action’ has no protection.” While I agree that all forms of expression should be completely protected I would also argue that some forms of actions should be protected as well. I propose that actions that do not incite imminent danger on another human being should be protected under the First Amendment. The doctrinal level of scrutiny in this instance should be strict scrutiny. Meaning that the FCC must prove it has a compelling reason to regulate or punish the speech & restriction not overly broad or vague & advances government interest. This level of scrutiny coincides with the “true threat” test which was defined in the Supreme Court in the 2003 case Virginia v. Black. A “true threat” is defined as, “[t]hose statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

If we were to put this test against the FCC v. Pacifica case, the FCC would fail. Under strict scrutiny there is no compelling reason or evidence that the FCC can provide showing that listening to indecent language on the radio causes a “true threat” towards children. Even though the father missed the warning given before the broadcast he still had the power to instantly switch the radio station. It should not be the job of the FCC and other government agencies to parent our children. All the father has to do is change the station and talk to his child.

Now, in regards to censorship, the legal definition is the suppression of ideas or images by the government or others with authority. In 1934 there was a Commissions Act that was passed regarding radio broadcasting. Under section 326 within Title III “prevents the commission from exercising censorship over broadcast stations.” However provisions in the U.S. code link to the Commissions Act under title 18, 1464 of the U.S. code” bars individuals from uttering obscene or indecent language over a broadcast station.” Now, these two provisions can be seen as being in direct contradiction to each other. However the opinion of the court in this case states that

“The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.”

So in other words, according to the court the FCC is not in violation of censorship because they did not prevent the monologue from airing. I completely disagree with this assessment. Whether you prevent a broadcast from airing or promise to fine and or jail time for that broadcast after-the-fact its still censorship. Censorship and self-censorship is in many ways the same thing. Self-censorship is the decision not to say or write something because it might cause problems for the individual themselves or for others. Self-censorship is still censorship because ideas are still being suppressed which according to the First Amendment is entirely unconstitutional. It also goes against Article 19 of the UDHR which states that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through ANY media and regardless of frontiers.”

Since this ruling the courts have been back and forth on this decision. In fact, “Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since.” That is until now. On July 13, 2010 a federal appeals struck down the FCC’s policy on indecency stating that “regulations barring the use of “fleeting expletives” on radio and television violated the First Amendment because they were vague and could inhibit free speech.” In a unanimous decision the Court of Appeals for the Second Circuit in New York stated the FCC’s current policy established “a chilling effect that goes far beyond the fleeting expletives at issue here” because it left broadcasters without a reliable guide as to what language the FCC would deem offensive.

This decision came as a result from the FCC issuing a stricter policy regarding what constituted as indecent words. Before the policy had to do with repetition of words that were considered indecent. But, because of ongoing controversy involving celebrities like Bono and Cher uttering the f-word on live television, the FCC decided to expand their definition to indecent words only uttered once. However, because of this expansion and the continuous undecided specific meaning of the word indecent the courts have ruled that the FCC needs to decide on a definitive definition that will allow broadcasters to definitively know what they can and cannot say. This is the FCC failing to pass strict scrutiny.

Regardless, the 2009 case FOX v. FCC the court ruled in favor of protecting fleeting expletives and the FCC (expanded) indecency policy was ruled void for its vagueness. In addition to that FCC v. Pacifica ruling was called into question. It is my hope that the policy for indecency be ruled unconstitutional for the reason that it inhibits broadcasters First Amendment rights. In addition to that, the Commissions Act prevents the FCC from exercising censorship over broadcast stations. We need to go back to the principles laid out in the UDHR which states that everyone has the right to freedom of expression and opinion as well as the right to seek such information through ANY form of media without any interference. The advances in technology should not deter us from this fundamental principle.

Protection of Hate Speech

For as long as anyone can remember there have been differences of race, religion, sex and gender in this country. Consequently, there are those who feel that they are superior to others based upon their specific race or beliefs, and in response speak out regarding such beliefs often in a manner both physically and verbally derogatory. Those trying to remedy this situation have attempted to establish “hate-speech” laws that would make it illegal at certain times and in certain places to degrade another’s race, religion, sex or gender. The problem with these laws is that they not only limit the speaker’s expression but also the speaker’s opinion. These laws run the risk of violating not only the person’s freedom of expression, but also the freedom of thought. Therefore, hate speech laws that punish those for being prejudiced for their thoughts and speech should not be imposed.

Taking this idea into a real situation, a person may hate African Americans and speak out according to such hatred as much as he or she desires. However, when such forms of expression become actions which cause a “true threat” it is no longer protected under the first amendment. The Supreme Court defined a “true threat” in the 2003 case Virginia v. Black, stating that a “true threat” is “[t]hose statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The Supreme Court held the opinion that the

“[s]peaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

Hence, if a person verbally speaks out about directly harming another human being or group of people with the intent of putting that person or group of people in fear of physical harm or death, they are no longer protected under the First Amendment.

This definition is grounded in the philosophy of Thomas Emerson who believed that freedom of expression should extend to expression but not to action. According to Emerson, “expression must be freely allowed and encouraged, and has earned an absolute right of protection. However, conduct that includes ‘action’ has no protection.”

An additional layer to this debate that needs to be addressed is the difference between public and private speech. In the 2011 case Snyder v. Phelps the Supreme Court ruled that the State of Maryland could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased Marine Lance Corporal Matthew Snyder. Now before we dive into the difference between public and private speech, first, let me back up a little to give the reader background on this particular case.

On March 10, 2006 The West Baptist Church (WBC) of Topeka, Kansas traveled to Maryland and picketed the funeral of the deceased solider Matthew Snyder. The purpose of the protest was to speak out against homosexuals in the military. The congregation did this with picketed signs which had blatant derogatory statements. The picketing took place on public land approximately 1,000 feet from where the funeral was held.

The father of the fallen soldier filed a diversity action against the founder of the WBC, Fred Phelps, and the church claiming “intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.” The supreme court defending the actions of the WBC, stated, “speech on public issues occupies the “highest rung of the hierarchy of First Amendment values” and is entitled to special protection.”

While I find the actions carried out by this church deplorable and frankly quite disgusting, I also find myself in agreement with the Supreme Courts ruling. It goes back to this notion of private verses public speech. The church was on public property and by the courts definition of public speech; they were speaking out against matters of social concern to the community. Do I think that the actions of this church caused emotional distress to the father of the fallen soldier? Absolutely! Having gone through something similar myself, my heart goes out to that father. Ethically, this church should be nailed to the wall, but lawfully I must disagree. Making it unlawful for this group to speak their minds would set a dangerous precedent. We cannot support the freedom of speech for those who preach only the messages we agree upon. The freedom of speech must extend to all; it must extend to the sane as well as the insane. For this reason, I begrudgingly support the right for the church and their founder to protest outside the funeral of that fallen soldier.

Going back to this notion of private verses public speech, it is a notion that was proposed by the philosopher Zechairah Chafee Jr. The philosopher argued that speech pertaining to the social interests of the community should have the highest form of protection. Chafee devised a “clear and present danger” test, further defined in the 1919 case Schenck v. U.S which states that any speech which presents a clear and present danger to the victim is not protected under the First Amendment.

If we apply this test to the Snyder v. Phelps case, the WBC and its founder did not pose a clear and present danger towards those attending the funeral. The group was standing 1,000 feet from the actual funeral and the messages posted on the picketed signs were not directly aimed at Marine Lance Corporal Matthew Snyder. In addition the messages addressed matters of public concern. Furthermore, there is no proof that there was intent to commit an act of unlawful violence towards the father and funeral attendees. Therefore, despite the ethical questionability of their actions, the WBC had every right to protest at the funeral.

There are other forms of “hate speech” that are important to address because, like the Snyder v. Phelps case, these forms of hate speech should also be protected under the First Amendment. Other examples of hate speech are speech against religions and different races. The target of religious hate speech in recent years has been Islam. A classic example of this is a Christian church group distributing t-shirts to its members that state “Islam is of the Devil.” While this statement exemplifies massive generalizations and distorts the religion of Islam, it must be protected. These statements don’t place anyone in fear of bodily harm or death; which means it passes the “clear and present danger” test.

It’s not the religious organization that should be protected but the followers of such organizations. However, we have to be careful when protecting these followers so that we don’t stifle opposing opinions about such organizations. It is having openly opposing ideas and opinions as well as a free form to discuss and challenge such opinions that has helped us advance as a nation.

Now the debate against protecting speech regarding someone’s race is a bit more difficult to defend because you are speaking out against a person’s identity rather than their personal beliefs. One example of a current controversy surrounding racial hate speech is cross burning. This controversy exemplifies hate speech through the use of symbols. In the 1992 case R.A.V v. St. Paul the Supreme Court ruled in favor of protecting white teenagers who burned a cross in the yard of a black family. The teenagers were charged under a “local bias- motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Supreme Court ruled to protect the defendants because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." In other words, this prohibition is too overly broad.

Under this specific charge I agree with the Supreme Court’s ruling. That being said, I would convict those teenagers of committing a “true threat.” If we were to pass the actions of the teenagers through the “clear and present danger” test, they would fail miserably. Remember a “true threat” determined by the Supreme Court to be “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” I argue that such statements can be translated through symbols. The Supreme Court also ruled that the speaker does not need to actually carry out the threat but rather it protects the victim from fear that such an act might be carried out. Burning a cross on the private property of a black family would most likely incite such a fear. Now, if the teenagers had burned a cross on private property (with permission) or on public property, they would be protected under the First Amendment. An example of such an occurrence is the 2003 case Virginia v. Black which was discussed earlier. But since that’s not what happened they should not be protected.

These ideas go back to the philosophy of Thomas Emerson, who proposed that freedom of speech should extend to expression and not to action. The categories of action that should go unprotected are sedition, defamation, obscenity, and provocation to anger. When looking at the facts of the case, I would say the actions taken by the white teenagers would fall under the category of “provocation to anger.” People should be protected from having their personhood directly threatened within the comfort of their own home, which is private property.

Now, hate speech is not just a domestic issue. International communities deal with this same issue and the final verdict about what constitutes protected and unprotected speech is not always universal. International jurisprudence defines hate speech as that which “advocates extreme or egregious violence against a target group (Rikhof, 1128).” To further define hate speech within international jurisprudence, the courts state that “persecutory speech which encourages hatred and violence against a targeted group furthers an [actual] attack against that group (Rikhof, 1128).” This means that in addition to speech that advocates violence, the international courts consider hate speech to be directly tied to any direct violent actions carried against that group. This principle is not followed in domestic law. As stated earlier in the essay, (under US law) there does not need to be any action carried out, just a fear from the victim that there could be such an action.

Presently, the Canadian Crimes against Humanity and War Crimes Act (CAHWA) lays out similar stipulations as the international jurisprudence and domestic laws; meaning that any such speech which promotes crimes against humanity is deemed illegal. Canadian law is in accordance with international jurisprudence when it states that in order for hate speech to enter the realm of criminal law it must openly and explicitly advocate extreme violence on the target of that speech. While hate speech is similarly defined, the difference between Canadian and domestic laws verses international law is that unlike international law, there does not need to be a direct link between the speech and hate crimes in order for such speech to be considered criminal.

While international and Canadian law set different precedents than domestic laws, all three communities agree upon the commitment to the individual human dignity. There needs to be a common balance between protecting everyone’s right to free expression and opinion while protecting everyone’s humanity. As long as speech does not incite fear of bodily harm it must be protected. There will always be differences between people. The solution to these differences should not be to limit emotionally charged communication. A person must be allowed to express their thoughts and opinions in a non-violent manner.

My God.... Your Speech!

Everyone should have the right to freely express their opinions through a variety of mediums. Under no circumstances should these rights be impeded unless they incite danger upon other human beings. This notion is supported by most Western democracies and by the international convention, namely the United Nations. Despite the protection such rights of expression receive; they have been threatened by provisions such as blasphemy laws. Provisions that are set in place in regard to freedom of speech that do not infringe upon our basic right to free speech are laws against libel and racism. In hopes of maintaining religious harmony blasphemy laws purport to grant asylum to religious groups from ridicule and judgment; however they often conflict with other human rights. Blasphemy laws are problematic because they infringe upon our basic rights of free speech and expression.

An example of this conflict can be seen in the Denmark cartoon controversy. During this controversy arguments in favor of free expression were challenged by blasphemy laws. The controversy started on 30 September, 2005 when Danish newspaper Jyllands-Posten published 12 editorial cartoons, most of which depicted the Islamic prophet Muhammad. The publication was in response to an ongoing debate about Islam and self-censorship. This, along with other publications of the cartoons in 50 other countries, led to Islamic protests across the Muslim world. Many of these protests escalated to violence and there were approximately 200 deaths.

The newspaper was taken to Danish court by 11 Muslim groups charging them with blasphemy. Critics of the cartoons described them as racist and argued that they were blasphemous to the people of the Muslim faith. Supporters of the publication pushed back against such critique, stating that the newspaper was “within the constitution, the Danish penal code and international convention. . . . It is not a dictatorship like Saudi Arabia that is going to dictate our editorial line here in Denmark."

The right to freedom of speech is supported Western democratic states, and Denmark is no exception. The Constitution of Denmark under Section 77 specifically states that “[a]ny person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice.” This law not only offers Danish citizens the right to free expression but it also provides them the right to publish those expressions and opinions. According to this section of the constitution, the newspaper and cartoonists are protected. What’s interesting is the provision added at the end of section 77 which states that the publisher may be answerable in the court of law. In essence the Danish government is leaving a back door open to potentially punish those responsible for offensive material. The law states you can state and print whatever you want but it doesn’t grant you protection from being punished for doing so. As it turns out, that is exactly what happened in this case.

Supporting section 77 of the Danish constitution the United Nations (UN) Universal Declaration of Human Rights, under Articles 1 and 2, states that all men are equal and granted the same rights regardless of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Hence no group of people, organization, or religious sector is regarded as the exception to the rule. If people have the right to free expression then it is safe to assume that such rights extend to expression of opinion about religious groups, corporations, and other groups of people. The UN’s Declaration of Human Rights, under Article 19, further supports the Danish law by stating that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

There are provisions set forth in the Danish government as well as the UN, in regards to freedom of speech which are meant to protect citizens and maintain harmony without infringing upon other basic rights. Like most Western democracies, Denmark has certain provisions against freedom of speech under the Danish Penal Code which include provisions against libel and racism. The provisions against libel are meant to maintain our humanity and maintain harmony between people. Libel law is where freedom of speech meets the requirement of responsible journalism.

The provision against libel is set down in § 267 of the Danish penal code:

"Anybody who offends another person's honor by insulting words or actions or by stating or disseminating charges, that are suitable for reducing the insulted person in the esteem of fellow citizens, will be punished by fine or ordinary imprisonment."

There are limitations to libel law, such as when a person is reporting the truth. Even if that truth defames a person’s character or reputation, such a report is protected under the freedom of speech.

Racism is another provision set forth against the freedom of speech. The laws against racism are set down in § 266b of the Danish penal code:

“Whoever publicly, or with intention to disseminating in a larger circle makes statements or other pronouncement, by which a group of persons is threatened, derided or degraded because of their race, colour of skin, national or ethnic background, faith or sexual orientation, will be punished by fine or imprisonment for up to 2 years.”

The laws against racism are set in place to protect the notion of equality amongst all human beings which is stated in the UN declaration of Human Rights under Articles 1 and 2. The prevention of slanderous speech helps maintain our humanity and aids in preventing future genocides. Under racism laws it is illegal to slander someone because of their faith. Therefore laws against racism work to protect the individual religious practitioners. In contrast, blasphemy laws protect the religious institutions. It is more important to protect the rights of the individual rather than that of the institution. Based on this blasphemy laws are rendered unnecessary. Despite this blasphemy laws are present and often enforced.

In the Danish penal code blasphemy is strictly forbidden by § 140:

"Anybody who publicly mocks or insults any in this country legally existing religious community tenets of faith or worship, will be punished by fine or imprisonment for up to 4 months."

The UN has also made decisions on religious intolerance. When approached by the Organization of the Islamic Conference in 1999 with a resolution titled “Defamation of Islam,” the UN adopted a modified version titled “Defamation of Religions.” The resolution urged that:

"[A]ll States, within their national legal framework, in conformity with international human rights instruments to take all appropriate measures to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion motivated by religious intolerance, including attacks on religious places, and to encourage understanding, tolerance and respect in matters relating to freedom of religion or belief."

The resolution was intended to limit speech that offends religion, particularly Islam. Though it remains an active resolution, debate about blasphemy laws is in full force. Because of this, courts have remained inconsistent with upholding such laws.

One relevant case is the 1811 case of People v. Ruggles. In this case the New York court ruled to uphold conviction against the defendant who stated that "Jesus Christ was a bastard, and his mother must be a whore." The conviction upheld that “[t]he free enjoyment of religious opinion is granted…but to revile the religion professed by almost the whole community is an abuse of the right.”

A conflicting example is the 1917 case of Bowman v. Secular Society. In this case the court ruled to end blasphemy prosecutions. Lord Sumner stated that “reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed….”

In another example, the 1952 case of Burstyn v. Wilson, the US Supreme Court reprimanded the New York law banning “sacrilegious” films that states that “no religion shall be treated with contempt, mockery, scorn, and ridicule.”

And so the debate continues; whilst people do have the right of free expression and opinion, there are stipulations placed upon that freedom. While some stipulations do not hinder the freedom of speech and expression, that is exactly what blasphemy laws accomplish. The stipulation relevant to the Denmark cartoon controversy was the blasphemy law. Fortunately the courts threw this case out on grounds that freedom of expression took higher precedent than the ban on blasphemy. It seems to be a recent pattern in Western democracies to have the freedom of speech and expression take precedent over that of blasphemy laws.

Today with a clear distinction between church and state, one would think that blasphemy laws would be rendered unconstitutional. There is a blatant contradiction between the right to free speech and blasphemy laws. Simply criticizing a person’s beliefs is not constitutional grounds for punishment. Under these grounds the Danish newspaper Jyllands-Posten had every right to print the 12 editorial cartoon sketches which depicted the Islamic prophet Muhammad. Individual rights to free speech should not be varied culture by culture but remain unchanging.