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.
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