Throughout the course of CMJR 494, I was exposed to many new things, from philosophers to films and to photographs. I recall a distinct warning being given to the class about graphic material to be viewed, but I did not think that they would be anything truly offensive or harmful. However, at many times throughout the quarter, I had to remind myself that these images and videos were being shown to the class because they were protected. For example, when it came to the Ecce Homo pictures and The Tin Drum film, I had almost forgotten about the aspect of them being protected, hence the fact that I was viewing them in class. This was because I was in fact startled, caught off-guard, and perhaps even offended by some of the material shown – I had to remind myself that these were legal viewings, because sometimes I would question to myself, “Is he allowed to show this to us…?” Learning about the values of each of the cases that we have read and studied have opened my eyes and allowed me to think about where I place my values. Looking back through my blog posts, I feel that I have wavered along the way because I did not know which philosopher I completely sided with, but usually, I was in favor of the one giving most protection to the individual.
At the beginning of the quarter, I was introduced to Ali Al-Timimi, an American-Muslim Islamic scholar with many credentials and a rich, educational background. He was convicted of inciting terrorism and sentenced to life imprisonment. Dr. Al-Timimi was said to have told a group of young Muslim men in northern Virginia to carry firearms and levy war against the United States. Upon reading his story, I was appalled at the fact that this doctor would even be questioned, just based upon his list of accomplishments. I recognized John Stuart Mill’s concept on freedom and his concern for intellectual truth and freedom at this point. I believed that using Mill’s strategy to test the truth in Al-Timimi would be appropriate, to determine whether he had actually given those instructions to levy war or not. I determined that strict scrutiny must be applied in this case and that a truly compelling reason must be valid in order to charge him; therefore, the government must prove the burden of proof. How could we charge him while not knowing the entire story? I concluded that the government must come up with substantial evidence and reasoning for convicting this man.
Similarly, in Brandenburg v. Ohio, the Court decided that threatening speech should be protected unless the state can prove that it leads to such action. I determined that we should only punish those who present an immediate danger to the public and only if a threat seems imminent. Otherwise, speech should be freely expressed as long as there is no harming of the public. With that in mind, I would overturn Miller v. California and FCC v. Pacifica with their offense theory approaches when it comes to sexual speech and use Brandenburg v. Ohio to evaluate sexual speech. This is because my grounding in the harm theory is solid and rooted in Cohen v. California.
In my second blog post, I agreed with the line in the First Amendment which clearly states that, “Congress shall make no law abridging the freedom of speech or the freedom of press.” I recognized the importance of this through the cases I studied in my post regarding Grant v. Torstar and NYT v. Sullivan. Again, I refer to Mill’s views from his essay, On Liberty that suggests any opinion is bound to have truth and falsity in it, so we must challenge the statement. Emerson’s expression-action theory as well as Mill’s notion of liberty helped me decide that opinions should be freely expressed and protected as long as they do not harm the individual through defamation.
I refer back to the harm theory in my post about the Tin Drum film and would adopt a SLAPS protection into the child porn law, which would be altering the decisions of Ferber and Osborne. These two cases do not include a SLAPS clause but in re-reading my blog post on the Tin Drum now, I want to emphasize that I would like to insert a SLAPS clause as well as an adolescent/child consent in regards to child pornography. I refer to C. Edwin Baker in this post because he protects the right of individuals to make their own judgments and choices about creating and/or consuming sexually simulating materials. His liberty theory is supported by self-fulfillment and participation in change, while protecting self-expressive and creative material that protects nonviolent practices. I agreed with this philosopher because he also believes that the First Amendment protects individuals to make their own choices about whether they make or watch sexual materials.
Finally, I refer once again to Baker in my post regarding animal cruelty. I recognize that his theory also supports speech unless it is violent or causes harm. In United States v. Stevens, Mr. Stevens was not directly involved in acts of violence, which made it easy for me to decide that his freedom of speech should be protected since he only participated in narrating the films of dogfighting. Though violence is depicted in the films, Stevens was not the one to immediately harm any one animal. Another factor in this case was that dogfighting is legal in Japan, though illegal in the States. The films, however, were filmed in Japan, which I believe would then make it acceptable to be made public. Even with the situation of the filmmakers in Dubai at the beginning of this course, along with Germany’s culture where sexual activity is prone in what we call “younger” children, it seems that I believe in variable human rights depending on local community standards. This is not something that I had realized before, but upon reading through my blog postings, I have come to realize that I am in favor of protecting the individual, and would have to look at cases individually especially when it comes to cross-cultural situations, such as the ones that we have encountered in this class.
In conclusion, this course on rights and law in the US has been a real eye-opener for me. It was the first time that I had encountered such a wide range of materials, from court cases to naked children and everything in between. I am finding myself question whether it is acceptable or should be acceptable to view certain things in theatres, and whether it is okay for “x” group to rally in front of “y” church (whether they are at a distance far enough or not, as Westboro made sure to do). I will always have the background of the cases and philosophies examined in this course to help me in the course of my own life, to put to use in everyday situations. Eventually, I will come up with my own solid groundings on what I believe to be right, and thanks to this course, that path has gotten a bit clearer.
Monday, March 15, 2010
Animal Cruelty
Animal cruelty has been illegal for a long time in all fifty states of America. In 1999, Congress made it a federal crime to sell or create images of animal cruelty (except those with scientific, journalistic, religious or political value) with foreign or commercial gain as the objective. The original target of this law was the depiction of crush or fetish videos. “Crush videos,” or videos in which animals are shown being crushed by the feet of high-heeled or bare-footed women, were made for a specific audience with a fetish for these actions.
Though in United States v. Stevens, crush videos were not a factor, First Amendment concerns were an issue. In 18 U.S.C. Section 48, the law covers animal cruelty depictions as long as the behavior is illegal in the state where the creation or sale of cruelty occurs. In United States v. Stevens, Robert Stevens was convicted for intentionally selling depictions of animal cruelty, namely, organized pit-bull dogfights and hunting expeditions. Though Stevens was not a part of the actual filming, he was responsible for editing the tapes and added his own narration to the films as well. The US Supreme Court overturned his conviction, arguing that it was unconstitutional and had no compelling interests in regards to free speech.
Congress grounded some of their defenses of the depictions of animal cruelty in the case of New York v. Ferber, where it was made illegal to create, sell or possess child pornography. However, the ruling in Ferber does not make a clear and concise connection with the new statute with animal cruelty. As mentioned earlier, there was simply no compelling evidence to gain governmental interest. Another court cased that was frequently used was the 1942 case of Chaplinsky v. New Hampshire, which tested the value of the speech and whether it was worthwhile or worthless. This case created a new category of speech that would not be protected under the First Amendment. Zechariah Chafee recognized two types of expression that were identified within Chaplinsky v. New Hampshire that separated the individual’s interest from a general social interest (page 435, Tedford & Herbeck). He defined these two categories as “(1) That which has social value as a step to truth; and (2) That which has no social value as a step to truth” (page 170, Tedford & Herbeck). This two-level system of free speech is what distinguishes an expression from being worthwhile or worthless.
However, I believe that the philosophy of John Stuart Mill rightly and directly applies to the animal cruelty case. Mill would suggest that individuals have the right to act as they want, as long as they do not harm others. In United States v. Stevens, this man did not directly harm anyone through his “actions” of narrating and editing scenes of a film. Had he been a participant in the actual recording or acting in the film, it would have been a different matter, but that is not the case. I do recognize, however, especially after reading and watching materials online related to this case, that there was harm done to the animals. But this does not move me to overturn the law because Stevens was not directly involved with the harming of animals. Another reason why I would still protect him, and perhaps the film, is because it was filmed in Japan, where these acts are legal. If the film were made in the United States illegally, then this would have been a different case and I would have different opinions on that matter, however, the fact is that the films were made in Japan where dogfighting is legal.
Also, C. Edwin Baker’s liberty theory supports the rights of the individual and states that free speech is a liberty that should not be defined by government. His model protects speech unless it is violent or causes actual harm, or that which constitutes fraud, perjury, blackmail, espionage, or treason (page 442, Tedford & Herbeck). In relation to Stevens’ case, he was not directly involved in any acts of violence, which then moves me to protect his rights because he was not harming anyone by narrating a couple of films. In conclusion, I believe that Stevens should be protected for merely narrating a film that he did not actually create. Though there are clearly acts of violence within his film, he was not a part of the making of that aspect, which I also believe he was punished too harshly for.
In a NY Times article, a subtle similarity was drawn between child pornography and the animal cruelty case in that the SLAPs clause was applied to the law. As mentioned earlier, religious, political, scientific, educational, journalistic, historical or artistic value served as exceptions in these types of cases. Personally, it is difficult for me to directly apply this to the case of animal cruelty and “crush videos” because it sounds a bit strange that we would be protecting odd fetishes of individuals. Regardless, I still stand by Stevens in protecting him for distributing and selling the animal-fighting videos because it did not immediately incite harm or violence to the public. If I were to apply the SLAPs value in animal cruelty cases, I would say that it would have to be done on a case-by-case basis.
Congress created a law that is too overly broad, creating a new category of unprotected speech that limits the liberty of certain individuals, such as Stevens, who did not directly commit an actual crime. Though I do not think that there is a need to create a whole new category of unprotected speech that was exemplified in Ferber’s case, I would apply Mill’s harm theory to protect Stevens.
Though in United States v. Stevens, crush videos were not a factor, First Amendment concerns were an issue. In 18 U.S.C. Section 48, the law covers animal cruelty depictions as long as the behavior is illegal in the state where the creation or sale of cruelty occurs. In United States v. Stevens, Robert Stevens was convicted for intentionally selling depictions of animal cruelty, namely, organized pit-bull dogfights and hunting expeditions. Though Stevens was not a part of the actual filming, he was responsible for editing the tapes and added his own narration to the films as well. The US Supreme Court overturned his conviction, arguing that it was unconstitutional and had no compelling interests in regards to free speech.
Congress grounded some of their defenses of the depictions of animal cruelty in the case of New York v. Ferber, where it was made illegal to create, sell or possess child pornography. However, the ruling in Ferber does not make a clear and concise connection with the new statute with animal cruelty. As mentioned earlier, there was simply no compelling evidence to gain governmental interest. Another court cased that was frequently used was the 1942 case of Chaplinsky v. New Hampshire, which tested the value of the speech and whether it was worthwhile or worthless. This case created a new category of speech that would not be protected under the First Amendment. Zechariah Chafee recognized two types of expression that were identified within Chaplinsky v. New Hampshire that separated the individual’s interest from a general social interest (page 435, Tedford & Herbeck). He defined these two categories as “(1) That which has social value as a step to truth; and (2) That which has no social value as a step to truth” (page 170, Tedford & Herbeck). This two-level system of free speech is what distinguishes an expression from being worthwhile or worthless.
However, I believe that the philosophy of John Stuart Mill rightly and directly applies to the animal cruelty case. Mill would suggest that individuals have the right to act as they want, as long as they do not harm others. In United States v. Stevens, this man did not directly harm anyone through his “actions” of narrating and editing scenes of a film. Had he been a participant in the actual recording or acting in the film, it would have been a different matter, but that is not the case. I do recognize, however, especially after reading and watching materials online related to this case, that there was harm done to the animals. But this does not move me to overturn the law because Stevens was not directly involved with the harming of animals. Another reason why I would still protect him, and perhaps the film, is because it was filmed in Japan, where these acts are legal. If the film were made in the United States illegally, then this would have been a different case and I would have different opinions on that matter, however, the fact is that the films were made in Japan where dogfighting is legal.
Also, C. Edwin Baker’s liberty theory supports the rights of the individual and states that free speech is a liberty that should not be defined by government. His model protects speech unless it is violent or causes actual harm, or that which constitutes fraud, perjury, blackmail, espionage, or treason (page 442, Tedford & Herbeck). In relation to Stevens’ case, he was not directly involved in any acts of violence, which then moves me to protect his rights because he was not harming anyone by narrating a couple of films. In conclusion, I believe that Stevens should be protected for merely narrating a film that he did not actually create. Though there are clearly acts of violence within his film, he was not a part of the making of that aspect, which I also believe he was punished too harshly for.
In a NY Times article, a subtle similarity was drawn between child pornography and the animal cruelty case in that the SLAPs clause was applied to the law. As mentioned earlier, religious, political, scientific, educational, journalistic, historical or artistic value served as exceptions in these types of cases. Personally, it is difficult for me to directly apply this to the case of animal cruelty and “crush videos” because it sounds a bit strange that we would be protecting odd fetishes of individuals. Regardless, I still stand by Stevens in protecting him for distributing and selling the animal-fighting videos because it did not immediately incite harm or violence to the public. If I were to apply the SLAPs value in animal cruelty cases, I would say that it would have to be done on a case-by-case basis.
Congress created a law that is too overly broad, creating a new category of unprotected speech that limits the liberty of certain individuals, such as Stevens, who did not directly commit an actual crime. Though I do not think that there is a need to create a whole new category of unprotected speech that was exemplified in Ferber’s case, I would apply Mill’s harm theory to protect Stevens.
Monday, March 8, 2010
The Tin Drum
Though at first glance, watching what looks like a little boy anxiously putting his face into the crotch of a young woman may cause one to be uncomfortable or even offended, it does not necessarily mean that the film need be banned or even labeled as child pornography. I recognize that within the film, The Tin Drum, there are several scenes that metaphorically represent sexual simulations, and I do not doubt or deny that some scenes personally caught me off-guard and offended me at least a little. But I would like to apply the harm theory here, which then moves me to protect this film because it did not truly incite immediate violence against me. Though a viewer might be disturbed or angered when Maria, in bed with Oskar, licks and eats the fizzy candy mixed with Oskar’s saliva in it off of her hand, the viewer undoubtedly was not physically harmed. It is a different matter when one is offended and one is harmed by something, as proven in Cohen v. California. In Cohen, the language that was used in this case was not considered obscene or of fighting words, though some may take the word “fuck” to be offensive. However, this type of expression is protected by the Constitution for several reasons: 1) it is not possible to come up with a list of acceptable and non-acceptable words, 2) provocative language can communicate valuable ideas and emotions, and 3) when the state attempts to prohibit words, they are also suppressing thoughts and ideas. In the same way, if we prohibit certain images that, in one country, may be viewed as art, and in the US a select handful of people may be offended, it would be limiting another’s artistic expressions to not protect The Tin Drum.
The Tin Drum is an award-winning film that gained much admiration and respect from film-reviewers and fans, which had much artistic and historical value behind it. According to the Child Pornography Prevention Act of 1966 (CPPA), child pornography “is defined by law as the visual depiction of a person under the age of 18 engaged in a sexually explicit conduct… Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity…”. In New York v. Ferber, “sexual conduct” is defined as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” However, the possession of such materials is not to be considered a crime. If we were to apply Baker’s theory here, not only should the possession of such materials not be considered a crime, but the production of such materials should be protected as well, as I will soon address. There is no SLAPS exception within Ferber, though I would argue extending it so that literary, artistic and political value is recognized, which there clearly was in The Tin Drum. Along with these examples are philosophical views that help to reason my argument for protecting The Tin Drum.
First, Thomas Emerson’s view on freedom of expression makes it clear that expressions that do not turn into actions should have absolute protection. If we were to think along his views toward freedom, The Tin Drum could be classified as an expression. However, I recognize that Emerson may consider some of the scenes in the film as obscene. This would have to be a case carefully examined if basing premises on Emerson, but I do think that the majority of Emerson’s views would contribute to protecting most of the content in The Tin Drum, classifying it as a means of artistic expression.
Edwin Baker is a philosopher grounded in a view that every individual has their right to express their creativity, whether that may be shown through a painting, a comic book, or a film, and so on. Baker protects the right of individuals to make their own judgments and choices about creating and/or consuming sexually simulating materials. His liberty theory suggests that “free speech becomes primarily a listener’s right to hear, not a speaker’s right to speak” (page 441, Tedford & Herbeck). Baker’s liberty theory is supported by two key values, which are self-fulfillment and participation in change, both pointing towards freedom and equality for individuals. I agree with the way Baker believes in protecting self-expressive and creative material that “protects nonviolent, non-coercive practices” (page 442, Tedford & Herbeck). Basically, the First Amendment protects individuals to make their own choices about whether they make or watch sexual materials.
In a society where we have teens prosecuted for “sexting,” I would argue that the scenes of The Tin Drum are not classified as child pornography, but rather, a film that has artistic value, in which some may not be able to understand while others are able to appreciate the film for what it is. In The Tin Drum, the boy who played Oskar was not forced to play the role, which I believe makes it acceptable for him to be Oskar, despite his actual age. Though in the United States we might think it is outrageous to view such a film where two young children are engaging in sexual activities, in countries like Germany, their culture is different from ours, which makes it okay to produce such a film with that storyline. Again, I do not dismiss the fact that one could be offended by knowing that the true age of the actors, but it does not harm anyone by knowing the numbers. Instead, it is a matter of offense, which I have suggested earlier in my analysis.
In conclusion, child pornography, or the definition of it at least, should be carefully considered because it seems to suppress the ideas of expressions of artists and filmmakers. If we extended the definition and allowed it SLAPS value, perhaps First Amendment rights would be much more granted. With Baker’s theory in mind, The Tin Drum is a film that offers literary value, especially for those who live in Germany who may understand the symbolisms in the film more than viewers in the United States, especially those in Oklahoma City. Nevertheless, the film, though it may have a select number of scenes that may be considered “uncomfortable” to view for most American eyes, is a film that holds a wide array of values for many viewers, thus allowing it to be viewed and purchased today.
The Tin Drum is an award-winning film that gained much admiration and respect from film-reviewers and fans, which had much artistic and historical value behind it. According to the Child Pornography Prevention Act of 1966 (CPPA), child pornography “is defined by law as the visual depiction of a person under the age of 18 engaged in a sexually explicit conduct… Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity…”. In New York v. Ferber, “sexual conduct” is defined as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” However, the possession of such materials is not to be considered a crime. If we were to apply Baker’s theory here, not only should the possession of such materials not be considered a crime, but the production of such materials should be protected as well, as I will soon address. There is no SLAPS exception within Ferber, though I would argue extending it so that literary, artistic and political value is recognized, which there clearly was in The Tin Drum. Along with these examples are philosophical views that help to reason my argument for protecting The Tin Drum.
First, Thomas Emerson’s view on freedom of expression makes it clear that expressions that do not turn into actions should have absolute protection. If we were to think along his views toward freedom, The Tin Drum could be classified as an expression. However, I recognize that Emerson may consider some of the scenes in the film as obscene. This would have to be a case carefully examined if basing premises on Emerson, but I do think that the majority of Emerson’s views would contribute to protecting most of the content in The Tin Drum, classifying it as a means of artistic expression.
Edwin Baker is a philosopher grounded in a view that every individual has their right to express their creativity, whether that may be shown through a painting, a comic book, or a film, and so on. Baker protects the right of individuals to make their own judgments and choices about creating and/or consuming sexually simulating materials. His liberty theory suggests that “free speech becomes primarily a listener’s right to hear, not a speaker’s right to speak” (page 441, Tedford & Herbeck). Baker’s liberty theory is supported by two key values, which are self-fulfillment and participation in change, both pointing towards freedom and equality for individuals. I agree with the way Baker believes in protecting self-expressive and creative material that “protects nonviolent, non-coercive practices” (page 442, Tedford & Herbeck). Basically, the First Amendment protects individuals to make their own choices about whether they make or watch sexual materials.
In a society where we have teens prosecuted for “sexting,” I would argue that the scenes of The Tin Drum are not classified as child pornography, but rather, a film that has artistic value, in which some may not be able to understand while others are able to appreciate the film for what it is. In The Tin Drum, the boy who played Oskar was not forced to play the role, which I believe makes it acceptable for him to be Oskar, despite his actual age. Though in the United States we might think it is outrageous to view such a film where two young children are engaging in sexual activities, in countries like Germany, their culture is different from ours, which makes it okay to produce such a film with that storyline. Again, I do not dismiss the fact that one could be offended by knowing that the true age of the actors, but it does not harm anyone by knowing the numbers. Instead, it is a matter of offense, which I have suggested earlier in my analysis.
In conclusion, child pornography, or the definition of it at least, should be carefully considered because it seems to suppress the ideas of expressions of artists and filmmakers. If we extended the definition and allowed it SLAPS value, perhaps First Amendment rights would be much more granted. With Baker’s theory in mind, The Tin Drum is a film that offers literary value, especially for those who live in Germany who may understand the symbolisms in the film more than viewers in the United States, especially those in Oklahoma City. Nevertheless, the film, though it may have a select number of scenes that may be considered “uncomfortable” to view for most American eyes, is a film that holds a wide array of values for many viewers, thus allowing it to be viewed and purchased today.
Monday, February 8, 2010
Actual Malice & Responsible Communication
Justice Brennan, who gave the majority opinion for the New York Times v. Sullivan case, said that, “[Libel] must be measured by standards that satisfy the First Amendment… Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials…” In this particular case, Commissioner L.B. Sullivan sued the New York Times for libel for printing a full-page advertisement titled, “Heed Their Rising Voices,” which described actions against civil rights protesters. Some of the information printed was incorrect and inaccurate, and though Commissioner L.B. Sullivan was not specifically named, he claimed that the Montgomery police that were referred to in the advertisement was aimed at him. This is an excellent example of libel per quod, especially where the advertisement implied several statements by reusing the word, “they,” when “they” could be referring to anyone such as the police, or bombers, and so on. This case established actual malice, which is defined as being “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not” (p. 89, Tedford & Herbeck). In other words, this standard requires that the plaintiff prove that the statement’s publisher knew that the statement was false, therefore putting a very high burden of proof standard on the plaintiff.
However, when thinking about the definition of actual malice, we must consider several factors that help us to be better communicators and examiners of such cases. If the one who made the defamatory statement was a professional journalist, for example, more protection would be granted, where as a less experienced journalist would not get as much protection. A second factor to consider would be the timeliness of the defamation, where protection for the speaker would be granted if it were on deadline. Thirdly, another question to be raised would be whether the original source of the defamation was believed to be reliable, in which there would be more protection given to the speaker once again.
In Canada, laws are known to be strict and more restrictive than laws of the United States as well as those in Britain, whose laws are also considered to be strict. In December of 2009, the Supreme Court of Canada released two decisions in libel suits against major newspapers that would increase protections for journalists, bloggers, and others. A defense libel for “responsible communication” was created, which the court defined as “careful reporting on matters of public interest.” In Grant v. Torstar Corp., the Court of Canada recognized a defense of responsible communication, which was designed to provide greater protection for communications on matters of public interest. The Court established several elements that the defense must be under, with two conditions that must be met in order for the defense to apply. The first element that one must prove is that the matter must be of public interest, and secondly, the defendant must show that they acted responsibly. To determine whether the defendant was responsible or not was based off another set of elements that considered: 1) the seriousness of the allegation, 2) the public importance of the matter, 3) the urgency of the matter, 4) the status and reliability of the source,) 4) whether the plaintiff’s side of the story was sought and accurately reported, 5) whether inclusion of the defamatory statement was justifiable, and 6) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth. In Grant v. Torstar, more protection was granted when dealing with the public interest. The peoples’ interest has a heavy weigh on the jury's determination of the outcome of the statement made, and where there is much public interest, the jury must then decide whether it qualifies for a responsible communication defense.
There seems to be a couple of clear distinctions when looking at the United States’ standards of libel protection versus those of Canada’s. In the United States, the plaintiff must prove fault, as determined in the court case of New York Times v. Sullivan. In Canada, the speaker is the one who must prove fault, which provides a distinction in determining the burden of proof and where it lies for the U.S. and for Canada. As mentioned earlier, more protection is granted within the United States because Canada’s courts must consider whether the defamatory statement is of public interest or not. In the U.S., public figures must know that they are to be judged more harshly. People who are known publicly in the United States and those who are in Canada each have different standards under libel protection. Canada will make no distinction on who the speaker is, whereas in America, certain people have more protection from defamation according to Gertz v. Welch.
The First Amendment clearly states that “Congress shall make no law abridging the freedom of speech or the freedom of press,” and this is a statement that I agree with. There is an importance set on each individual’s thoughts of what the meaning of truth is, and though the person who might have been “slandered” against might have taken offense, perhaps the person who said that statement believed it to be true, personally. I am in favor of promoting the rights of the individual, as U.S. courts would follow. Under actual malice, individual protection is much more protected than a Canadian court under the rules of responsible communication, which makes me lean towards siding with the United States’ view on libel. According to John Stuart Mill, in his essay, On Liberty, any opinion is bound to have truth and falsity in it, so we must challenge the statement. This concept is a much more expansive notion than that of John Milton's, who argued that people should be able to express their ideas and have them compete so that the truth might prevail in the end (p. 432, Tedford & Herbeck). I agree with these philosophers in that our search for truth is a good philosophical reason for free speech to be expressed as individuals. This ties in with the way that the United States views freedom of expression in relation to libel, in the sense that there is truth in all opinions which allows individuals to speak freely regardless of their public status. To an extent, Thomas I. Emerson’s expression-action theory also plays a role with libel laws in the United States. He argues that freedom of expression “includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses…” (p. 438, Tedford & Herbeck). Thus, a person can make a statement in an advertisement or in a blog and that should be considered an individual right to be able to express opinions publicly. Though there may be the question of “where does one draw the line?,” Emerson still has a solid and important significance in developing a better understanding of the First Amendment, which ultimately reflects upon the subject of libel laws as well. I agree with Emerson’s stance on protecting free speech, because I believe that it is important to the individual. To express one’s opinion should be protected absolutely, but when it comes to a point of physical harm or a provocation of violence, I would say that only then should speech be restrained. Punishment should be considered in the case of libel or defamation if it has caused someone physical harm, but otherwise, speech should be expressed freely, regardless of who you are.
However, when thinking about the definition of actual malice, we must consider several factors that help us to be better communicators and examiners of such cases. If the one who made the defamatory statement was a professional journalist, for example, more protection would be granted, where as a less experienced journalist would not get as much protection. A second factor to consider would be the timeliness of the defamation, where protection for the speaker would be granted if it were on deadline. Thirdly, another question to be raised would be whether the original source of the defamation was believed to be reliable, in which there would be more protection given to the speaker once again.
In Canada, laws are known to be strict and more restrictive than laws of the United States as well as those in Britain, whose laws are also considered to be strict. In December of 2009, the Supreme Court of Canada released two decisions in libel suits against major newspapers that would increase protections for journalists, bloggers, and others. A defense libel for “responsible communication” was created, which the court defined as “careful reporting on matters of public interest.” In Grant v. Torstar Corp., the Court of Canada recognized a defense of responsible communication, which was designed to provide greater protection for communications on matters of public interest. The Court established several elements that the defense must be under, with two conditions that must be met in order for the defense to apply. The first element that one must prove is that the matter must be of public interest, and secondly, the defendant must show that they acted responsibly. To determine whether the defendant was responsible or not was based off another set of elements that considered: 1) the seriousness of the allegation, 2) the public importance of the matter, 3) the urgency of the matter, 4) the status and reliability of the source,) 4) whether the plaintiff’s side of the story was sought and accurately reported, 5) whether inclusion of the defamatory statement was justifiable, and 6) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth. In Grant v. Torstar, more protection was granted when dealing with the public interest. The peoples’ interest has a heavy weigh on the jury's determination of the outcome of the statement made, and where there is much public interest, the jury must then decide whether it qualifies for a responsible communication defense.
There seems to be a couple of clear distinctions when looking at the United States’ standards of libel protection versus those of Canada’s. In the United States, the plaintiff must prove fault, as determined in the court case of New York Times v. Sullivan. In Canada, the speaker is the one who must prove fault, which provides a distinction in determining the burden of proof and where it lies for the U.S. and for Canada. As mentioned earlier, more protection is granted within the United States because Canada’s courts must consider whether the defamatory statement is of public interest or not. In the U.S., public figures must know that they are to be judged more harshly. People who are known publicly in the United States and those who are in Canada each have different standards under libel protection. Canada will make no distinction on who the speaker is, whereas in America, certain people have more protection from defamation according to Gertz v. Welch.
The First Amendment clearly states that “Congress shall make no law abridging the freedom of speech or the freedom of press,” and this is a statement that I agree with. There is an importance set on each individual’s thoughts of what the meaning of truth is, and though the person who might have been “slandered” against might have taken offense, perhaps the person who said that statement believed it to be true, personally. I am in favor of promoting the rights of the individual, as U.S. courts would follow. Under actual malice, individual protection is much more protected than a Canadian court under the rules of responsible communication, which makes me lean towards siding with the United States’ view on libel. According to John Stuart Mill, in his essay, On Liberty, any opinion is bound to have truth and falsity in it, so we must challenge the statement. This concept is a much more expansive notion than that of John Milton's, who argued that people should be able to express their ideas and have them compete so that the truth might prevail in the end (p. 432, Tedford & Herbeck). I agree with these philosophers in that our search for truth is a good philosophical reason for free speech to be expressed as individuals. This ties in with the way that the United States views freedom of expression in relation to libel, in the sense that there is truth in all opinions which allows individuals to speak freely regardless of their public status. To an extent, Thomas I. Emerson’s expression-action theory also plays a role with libel laws in the United States. He argues that freedom of expression “includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses…” (p. 438, Tedford & Herbeck). Thus, a person can make a statement in an advertisement or in a blog and that should be considered an individual right to be able to express opinions publicly. Though there may be the question of “where does one draw the line?,” Emerson still has a solid and important significance in developing a better understanding of the First Amendment, which ultimately reflects upon the subject of libel laws as well. I agree with Emerson’s stance on protecting free speech, because I believe that it is important to the individual. To express one’s opinion should be protected absolutely, but when it comes to a point of physical harm or a provocation of violence, I would say that only then should speech be restrained. Punishment should be considered in the case of libel or defamation if it has caused someone physical harm, but otherwise, speech should be expressed freely, regardless of who you are.
Saturday, January 23, 2010
Ali Al-Timimi
An American-Muslim Islamic scholar, who was also a biologist and a doctor that was always “hungry for answers to larger philosophical questions,” was convicted of inciting terrorism and sentenced to life imprisonment. His familial background is also very impressive as well; both of his parents were very well-educated as well, with his father being a lawyer and his mother holding her Ph.D. in psychology. By reading a list of accomplishments he and his family have made, you would have never guessed that Dr. Al-Timimi would even have the intention of expressing bad speech regarding terrorism or anything of that sort.
However, Ali Al-Timimi was indicted in 2004 and convicted in 2005 of charges of exhortation. According to FOX News, he was “convicted of charges including soliciting others to levy war against the United States and inducing others to use firearms in violation of federal law.” He supposedly told a group of young Muslim men in northern Virginia to carry firearms and levy war against the United States. It had been reported that Al-Timimi also told them that they were obligated to work for the Taliban, and that America was at war with Islam and would attack the Taliban – though this was before the United States had even gone to Iraq. Al-Timimi also made a comment about the Columbia space shuttle disaster, which upset people because they understood it as a way of saying that he wanted Americans to die. Jumping to conclusions like this is something that U.S. Attorney Paul McNulty said in a statement, “He not only wanted Americans to die, he recruited others to his cause at a time when our country was mourning the loss of more than 3,000 people who were murdered in a heinous act of terrorism.” Ultimately, this man was charged with treasonous speech and life imprisonment without parole, which came as a result of his firearms convictions. But I have to ask, where did Attorney McNulty directly read that Al-Timimi “wants Americans to die?” Al-Timimi described the shuttle disaster as something that perhaps God had willed, but I do not think that this automatically means that Al-Timimi was happy that thousands of lives were lost. Perhaps we should test out the truth in the Attorney, but even more so in Al-Timimi, to get to the core of what his statements actually meant.
John Stuart Mill’s concept on freedom of expression is that truth should be tested in every man. I agree that any opinion or statement may have truth and/or falsity in it, which would then make us challenge the particular statement. However, J.S. Mill is also concerned with intellectual truth and freedom, which I believe applies to Al-Timimi’s case. The philosophical reason for free speech is centered on the struggle for intellectual freedom and the search for truth, according to Mill. The political reason is based on at least three points that relate to self-government, including free and open discussion of political issues, promoting participation, and allowing people the right to freely express their opinions. Lastly, there is an individual reason, which is based on a belief that everyone has the right to self-fulfillment. I also agree with Emerson’s view that Al-Timimi rightly expressed his thoughts by means of speech, which should be protected absolutely. Though some may question whether Al-Timimi had actually given instructions versus pure oral expressions, I would like to then call upon Mill’s strategy to test the truth in Al-Timimi and find out whether he had actually given instructions or not.
Clarence Brandenburg was a leader in the Ku Klux Klan in Ohio, who made several remarks that were considered as threats against the president, the Congress, and the Supreme Court. Justices Black and Douglas argued in this case that the clear-and-present-danger test had “no place in the interpretation of the First Amendment.” In the 1969 case of Brandenburg v. Ohio, the Court decided that threatening speech be protected unless the state can prove that it leads to such action. This case went beyond the use of the clear-and-present-danger doctrine, and established an incitement standard, which I believe draws a parallel line with the Al-Timimi case. We should only punish those who present an immediate danger to the public and if a threat seems very imminent. If not, then speech should be freely expressed as one desires as long as there is no consequence of harming the public.
As a result, strict scrutiny needs to be applied in Al-Timimi’s case. The government must prove that they have a truly compelling reason to charge Dr. Al-Timimi; therefore the burden of proof must be proven by the government. There must be room for the government to prove that it has a reason to regulate or punish the speech in which Al-Timimi expressed in order to punish him of any crime of misuse of speech. If there was only a rational reason to regulate speech, then it might be too broad to determine the result of Al-Timimi’s case, which is why I think that strict scrutiny should be applied.
Did Al-Timimi actually harm anyone directly? Did he even mean to, if he did? People get offended all the time and everyone has their secret conversations. But perhaps the United States is still afraid and judgmental, coming to decisions too quickly without testing the truth. Al-Timimi had only used oral means to express his thoughts and was accused of having secret conversations, but it is only fair to ask Dr. Al-Timimi of his intention and to test the truth. Furthermore, we have operated under the Brandenburg principle since the 1960s, and it still applies in this case. We must ask whether there is more than just a clear-and-present-danger in this case, and determine whether there was actual harm caused directly by Al-Timimi’s words.
However, Ali Al-Timimi was indicted in 2004 and convicted in 2005 of charges of exhortation. According to FOX News, he was “convicted of charges including soliciting others to levy war against the United States and inducing others to use firearms in violation of federal law.” He supposedly told a group of young Muslim men in northern Virginia to carry firearms and levy war against the United States. It had been reported that Al-Timimi also told them that they were obligated to work for the Taliban, and that America was at war with Islam and would attack the Taliban – though this was before the United States had even gone to Iraq. Al-Timimi also made a comment about the Columbia space shuttle disaster, which upset people because they understood it as a way of saying that he wanted Americans to die. Jumping to conclusions like this is something that U.S. Attorney Paul McNulty said in a statement, “He not only wanted Americans to die, he recruited others to his cause at a time when our country was mourning the loss of more than 3,000 people who were murdered in a heinous act of terrorism.” Ultimately, this man was charged with treasonous speech and life imprisonment without parole, which came as a result of his firearms convictions. But I have to ask, where did Attorney McNulty directly read that Al-Timimi “wants Americans to die?” Al-Timimi described the shuttle disaster as something that perhaps God had willed, but I do not think that this automatically means that Al-Timimi was happy that thousands of lives were lost. Perhaps we should test out the truth in the Attorney, but even more so in Al-Timimi, to get to the core of what his statements actually meant.
John Stuart Mill’s concept on freedom of expression is that truth should be tested in every man. I agree that any opinion or statement may have truth and/or falsity in it, which would then make us challenge the particular statement. However, J.S. Mill is also concerned with intellectual truth and freedom, which I believe applies to Al-Timimi’s case. The philosophical reason for free speech is centered on the struggle for intellectual freedom and the search for truth, according to Mill. The political reason is based on at least three points that relate to self-government, including free and open discussion of political issues, promoting participation, and allowing people the right to freely express their opinions. Lastly, there is an individual reason, which is based on a belief that everyone has the right to self-fulfillment. I also agree with Emerson’s view that Al-Timimi rightly expressed his thoughts by means of speech, which should be protected absolutely. Though some may question whether Al-Timimi had actually given instructions versus pure oral expressions, I would like to then call upon Mill’s strategy to test the truth in Al-Timimi and find out whether he had actually given instructions or not.
Clarence Brandenburg was a leader in the Ku Klux Klan in Ohio, who made several remarks that were considered as threats against the president, the Congress, and the Supreme Court. Justices Black and Douglas argued in this case that the clear-and-present-danger test had “no place in the interpretation of the First Amendment.” In the 1969 case of Brandenburg v. Ohio, the Court decided that threatening speech be protected unless the state can prove that it leads to such action. This case went beyond the use of the clear-and-present-danger doctrine, and established an incitement standard, which I believe draws a parallel line with the Al-Timimi case. We should only punish those who present an immediate danger to the public and if a threat seems very imminent. If not, then speech should be freely expressed as one desires as long as there is no consequence of harming the public.
As a result, strict scrutiny needs to be applied in Al-Timimi’s case. The government must prove that they have a truly compelling reason to charge Dr. Al-Timimi; therefore the burden of proof must be proven by the government. There must be room for the government to prove that it has a reason to regulate or punish the speech in which Al-Timimi expressed in order to punish him of any crime of misuse of speech. If there was only a rational reason to regulate speech, then it might be too broad to determine the result of Al-Timimi’s case, which is why I think that strict scrutiny should be applied.
Did Al-Timimi actually harm anyone directly? Did he even mean to, if he did? People get offended all the time and everyone has their secret conversations. But perhaps the United States is still afraid and judgmental, coming to decisions too quickly without testing the truth. Al-Timimi had only used oral means to express his thoughts and was accused of having secret conversations, but it is only fair to ask Dr. Al-Timimi of his intention and to test the truth. Furthermore, we have operated under the Brandenburg principle since the 1960s, and it still applies in this case. We must ask whether there is more than just a clear-and-present-danger in this case, and determine whether there was actual harm caused directly by Al-Timimi’s words.
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