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.