Spaghetti Straps, Halter Tops, and Prurient Interests

“...the average person, applying contemporary community standards...”

Whenever I read this standard set forth by way of the “Roth test,” I think of two very different weddings I was a bridesmaid in. Both women were raised in Christian homes and attended the same Christian school growing up. The first wedding, the bride and her maids were not allowed to wear strapless, spaghetti strapped, or halter topped dresses. The reasoning behind this was that the groom did not want other men “fantasizing about his soon-to-be wife,” and he thought that those types of clothes were, shall I say, scandalous. There was no dancing and not a drop of liquor in sight.

Meet our next bride. The dresses that she hand-picked for us were short, backless, and had deep plunging necklines. The neckline on the dress was so deep that had to tape and sew mine up so as not to have a wardrobe malfunction. There was dancing, scantily clad women, and an open bar.

While both of these women would be considered “average,” their view of contemporary community standards could not be more different.

Delivering his opinion on the Miller v. California case, Justice Burger, like many of his colleagues, revised the Roth test. Justice Burger revised it to read as: [1] “whether the average person, applying contemporary community standards of the state or local community, would find that the work, taken as a whole, appeals to prurient interest; [2] whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law; and [3] whether the work lacks serious literary, artistic, political, or scientific value.”

In the same year, in his dissent, Justice Brennan argued that the “Roth test” did not work because it was vague and it had a “chilling effect” on the freedom of expression. As shown by the example above, people's definitions and views on art, obscenity, and value differ too greatly to attempt to form a law based upon them. After all, what does provoke “prurient interests?” For some it's halter tops and spaghetti straps.

Justice Brennan proposed that citizens should have the right to decide for themselves about sexual expression, “but that controls should be kept on dissemination to juveniles and to unwilling persons.”

Adopting Justice Brennan's philosophy and John Stuart Mill's “harm principle”, I would argue that words, images, and sounds that stimulate erotic or sexual thoughts be protected, with the exception of those that contain illegal content, such as children, rape, and non-consenting adults. Mill argued that if there is direct and immediate “harm to others,” then restrictions may apply. This would apply to the exceptions above because their direct harm is the content and it has already taken place. Although, I do think that, with the exception of sexual content containing children, these restrictions may be difficult to judge because of people's sexual fetishes. I would argue that the restriction apply to any real-life footage of someone being engaged in any sexual act that is non-consensual, as opposed to actors engaging in consensual S&M for instance.

Again, adopting Brennan's philosophy regarding restrictions on dissemination and Feinberg's offense principle, I would argue that varying levels of protection apply to the distribution of such speech. This is also applicable to my view on differing protections of various mediums. I think exhibits such as Mapplethorp's should be allowed but do I think that the advertisement for the exhibition should be him pulling a bull whip out of his butt, no! I think that Germany has a relatively good policy when it comes to censorship and juveniles. There are specific channels for children and there are also blocks of time in the day where “obscene” or adult content is not allowed. The restrictions basically become more lenient throughout the day and into the night, so by 11:00 pm almost anything goes. I think that this is a logical approach that is straightforward to the point where citizens know when to watch what they want and when not to. As Feinberg argued though, there is a difference between harm and offense, and the law should not be so tangled in what offends, which is much too difficult to define for a diverse and free nation.

Incitement

The question being raised is whether or not the author of the Rwandan tabloid Kangura, Hassan Ngeze, is justified in his conviction by the International Criminal Tribunal for Rwanda for inciting genocide in Rwanda, the country of distribution, by publishing anti-Tutsi material that alluded to violence, symbols that referred to historical persecution, as well as individuals.

I claim that Hassan Ngeze is guilty as convicted by the International Criminal Tribunal for Rwanda for inciting genocide. Furthermore, I claim that conviction of incitement to genocide should be decided upon intent of the speaker, the content of the speech, the power of the speaker among his audience, while also considering national history, the current state of the nation, and the extent of diverse media.

The First Amendment philosopher, William Blackstone, stated that speech that had a tendency to “create animosities” or “disturb the public peace” could be punished after publication. Ngeze's speech not only created animosities, but played upon them heavily by publishing such phrases as, “What weapons shall we use to conquer the inyenzi once and for all?”

The first element when considering cases of incitement to genocide is time and place. Many cases of genocide occurred in countries where there is national, civic and economic stress; the society is currently not stable. This is merely the tone and not the cause of such massacres, but it may shed light on the power and influence of a speaker's words during vulnerable times. Are they taking advantage of their audience's distress? Rwanda is occupied by two opposing ethnic groups and this is also part of their history and something to consider when judging the content of a message.

When also considering the national setting, one must consider the history of the nation on many levels. First of all there is the relevance of symbols and people and what they hold to the people in which they originated from. The U.S. Supreme Court banned cross burning when intended to intimidate because it is “inextricably linked...to sudden and precipitous violence.” Ngeze not only paired his comments with images of machetes but that of Kayibanda, a Rwandan president who was infamous for killing Tutsi's. Germany also has outlawed the swasitka unless it is being used for educational or historical reasons.

A few other issues to keep in mind when considering the setting. In the U.S. there is the theory that a public discourse will contain/manage hateful speech. This is why there is not a general fear at all times among Americans of the KKK despite their hateful and violent speech.

But in countries where mass genocide has occurred there is a general control of the airwaves. Ngeze was working with the government to disseminate hateful speech that was intended to stir a people full of unrest to anger and murder. This was also a mass media with a broad audience, unlike the Schneck case where he was distributing pamphlets or other cases where the medium is meager and the audience small. Considering the Brandenburg case: I do not believe that his speech was publically broadcast and if it was, the distributor most likely did not agree with the material.

Ngeze had the intent to incite to genocide. Not only did he invite, suggest, and/or command people to kill, he fully intended them to carry it out. He boasted that if he published someone's name that they would indeed be murdered. Furthermore, why would he publish someone's name if he did not intend for them to be harassed, attacked, or murdered? As the court also pointed out that foreseeability is an essential element in deciding someone's guilt for incitement to genocide.

No Shame in a Bargain

While the golden and crimson leaves are falling and Americans are digging out their coats and scarves for the cooler weather, the retail sector is strategizing ways to combat their dismal sales predicted for the upcoming holiday season.

But there's one branch of the retail sector that isn't worrying about their sales: the resale and thrift shop sector.

“In August the National Association of Resale & Thrift Shops (NARTS), which claims to be the world's largest resale trade association, said a survey of its membership about second quarter sales in 2009 compared to the same period in 2008 showed increasing turnover in the second-hand sector,” as reported by Reuters earlier this month.

The dark and bulging cloud of the recession has rained on many Americans, drowning them in unemployment, loss of their homes, and for the rest a fear of the financial unknown. This has made many Americans, who's favorite past time happens to be shopping, be more cautious about their spending. Frugality and resourcefulness has led many to the used and second-hand shops, where bargains are aplenty, treasures may be found, and beauty can be in the eye of the beholder.

“I'm just being careful and thinking twice about my purchases, “ stated Jean Schneider as she shopped at her local Goodwill, as quoted in the Seattle Times.

The Tacoma and Seattle chapters of Goodwill are not only flourishing but are opening up new stores across the Puget Sound, while other retailers are shutting their doors for good at the end of the day. The Tacoma Goodwill alone anticipates sales around $40 million for 2009.

Besides a bargain, second-hand and thrift shops encourage recycling and allow people to buy one-of-a-kind items for their wardrobe and home.

“For me it's a recycling thing. We also did it before the recession but we are even more careful now," said Kathy Gropper, a frequent shopper of Half-Priced Books, to the New York Times.

Retailers like Half-Priced Books and Crossroads Clothing Co. allow customers to trade and sell their own items for used ones, all while giving the customer the satisfaction of purchasing something “new,” and isn't that most of the enticement of shopping?

Realizing the success of this model and its current demand, one company has brought this model online.

“None of the other models — posting items and selling them on eBay, bartering or selling them — were enticing enough from a convenience standpoint,” said Mr. Reinhart, a recent Harvard graduate, as quoted by the New York Times.

Reinhart and his college roommate Oliver Lubin started the online company ThredUp, which allows customers to list their unwanted clothing and what they're interested in and ThredUp then finds them clothes based on what they are looking for and buyers of their unwanted items.

“Reed Hastings, the founder and chief executive of Netflix, is an adviser to the company,” and much of their business model and delivery system is heavily influenced by Netflix, which hasn't done so bad for itself.

With Christmas a little over two months away, second-hand shops may alleviate some of the guilty over-spending usually associated with the holidays and allow people to rest easy with their bargains in hand.

Al-Timimi: Unique Times

The case Ali Al-Timimi v. United States of America may not seem like a complex case, but the United States' judicial history is making the case more complex and may define our post 9/11 nation. Al-Timimi is charged with many things but the majority of the charges levied against him are concerned with conspiracy and levying war against the United States. Al-Timimi was convicted and is currently serving a life sentence. His lawyers are appealing, arguing his defense based on the landmark Brandenburg case. I would argue rather to uphold his conviction based on “bad tendency” and “clear and present danger,” instead of the infamous Brandenburg case. I believe that his speech should be punished and suppressed.

Concerning convicting Al-Timimi based on the reasoning behind the case Schenck v. United States, which introduced the clear and present danger test, but applied bad tendency, some argue that this case does not apply because the United States had not declared war on terrorism/Afghanistan. I disagree. Justice Holmes stated that, “But the character of every act depends upon the circumstances in which it is done...” In the Schenck case it happened to be war that made the circumstance unique at the time. Justice Holmes further explains the courts reasoning:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree.”

Justice Holmes last sentence is key. The United States had just experience the worst terrorist attacks in its history and the country was on the verge of declaring war. Al-Timimi statements were made soon after 9/11 and he aided, abetted, and counseled individuals to go and train to wage a “violent jihad” against the U.S.

9/11 created a unique environment, one that might even be labeled by Justice Holmes as unique. The world had witnessed the power of such speech and what can happen when left unchecked. This is not to say that all negative speech against the U.S. leads to the atrocities that occurred on 9/11. I think that the reasoning and justification of not protecting certain forms of speech clarified in the Schenck case, should be used sparingly, and furthermore, based upon Justice Holmes qualifications, probably would be. Philosophically, I think that the only philosopher that may agree with my reasoning would be Chafee. Although he disapproves of the remote bad tendency doctrine (which was used in covicting Schenck), he does approve “of some form of the clear-and-present-danger test.” He goes onto state:

“The test laid down by the United States Supreme Court in the Schenck case still holds good...”

Chafee then goes on to use the quotation of Justice Holmes used above. Chafee may not completely agree with my reasoning concerning the case against Al-Timimi, but he might agree with my interpretation of Justice Holmes qualifications for “unique times.”

Furthermore, Al-Timimi had moved beyond speech and was advocating action; action that his colleagues/ followers took by traveling to Pakistan for training. Training by a terrorist group that was linked to Al-Qaeda. He was advocating lawless action which is illegal. Furthermore, the Clinton administration established in 1999, that aiding, abetting, conspiring, and/funding Al-Qaeda was illegal.

“William J. Clinton declared it a national emergency to deal with the threat posed by Al Qaeda and the Taliban. In his
Executive Orde 13129, the President prohibited, among other things, the making or receiving of any contribution
of funds, goods, or services to or for the benefit of the Taliban.”

Al-Timimi had every intention of aiding, abetting, and if not participating himself, in action against the U.S. whether on U.S. territory or in another country. I would uphold his conviction, but I do not agree with his sentence.

Media Law: Your God, My Speech

What is community? Merriam-Webster defines “community” as a unified body of individuals; the people with common interests living in a common area. Some may think they can choose their community others may disagree. And what are the ways to draw our lines in the sand establishing the boundaries of our community? Is it financial, religious, cultural, or maybe its dictated by the political color your state happens to fall under. The emerging point is that boundaries are difficult to define, especially in reference to the idea of community. One can not establish or identify that community even resides in a physical boundary, therefore laws governing communication should not be written so as to solely support a group identity or “community standard,” but instead protect a universal individual civil liberty.

From a societal and governing standpoint, governing communication based on a group standard can produce oppressed citizens, social unrest, and can be a hindrance to social progress. Singapore governs communication based on a “community standard” and has in place strict censorship and defamation laws. Singaporeans, in turn, have little freedom of expression, access to information, whether local or international, and therefore can not fully participate in government.

Structurally, in the United States, the country was founded on numerous principles, but among them were liberty and freedom of religion. If you are free to practice whatever religion you choose and there is an established separation of church and state in the United States then it is not just to govern communication based upon one “religious” standard or definition. The philosophy and the law conflict. Justice Clark, delivering the opinion of the Supreme Court regarding the case Burstyn v. Wilson, said it best:

“Under such a standard the most careful and tolerant censor would find
it virtually impossible to avoid favoring one religion over another,
and he would be subject to an inevitable tendency to ban the
expression of unpopular sentiments sacred to a religious minority.”

Philosophically, John Stuart Mill argued that the right to free speech is justified because “the censored opinion may be true and the accepted opinion may be in error.” Protecting a universal individual right to free speech allows citizens to voice their claims of injustice to possibly bring about change. The Civil Rights movement in the United States in an example of Mill's argument. It was acceptable to discriminate against African Americans, but it was obviously unjust. If Americans did not have a right to discuss their opinions and concerns in a social forum, who knows how long it would have taken to outlaw racial discrimination in the United States. Mill argued that this is how truth emerges: through conflict and dialogue.

Despite my philosophical convictions, I simply do not think that it is logical to base communication laws on the view of one group. I simply do not think that it would work. It would be a logistical, judicial, and civil nightmare. I can't imagine what China spends on censorship and how much man power it takes to enforce the level of censorship that they desire.

I do believe free speech is a foundational right, but there should be some limitations. There will always be subject matter that offends, including myself, but I too must consider the full extent of the possible consequences if that subject matter were left to exist or were not permitted to be there.

After looking at the images from both the “Ecce Homo” and Jyllands-Posten satirizing Muhammed I find them both offensive. I have mixed views on both cases. Taste aside, I think that the”Ecce Home” exhibition should be legally allowed. It is an exhibition that individuals could choose to see on their own free will, as well as choose not to see. Now if the image of the man portraying Jesus with his genitalia in full view was used for posters for promotion I have less confidence in the legality of that. It might violate obscenity laws. Jyllands-Posten images satirizing Muhammed were racist and in poor taste. Their publication incited some violence, but this may have been among radicals. Regardless, they should be protected. But to be frank, I think that these two cases should be left to the corporations or businesses that fund or display them. They can deal with the consequences of either praise or criticism or financial loss or gain.

I think that the filmmakers in Dubai should have the same rights as filmmakers in Hollywood, but unlike our government, their government does not permit that at this point. Their government would have to make foundational changes in their laws regarding communication rights. I would rather the people of Dubai have their individual communication rights granted before a filmmaker's rights.