“May you never see them,” was the closing statement of New York Times Supreme Court correspondent Adam Liptik's article discussing the U.S. Court of Appeals for the Third Circuit reversal of Robert J. Stevens conviction.
Stevens was prosecuted for compiling footage of dog fights into DVDs for sale. Some of the footage was older, shot in Japan (where dog fighting is legal), not filmed by Stevens, and he was supposedly not present at the events that are depicted in the DVDs. Stevens was convicted under Statute 48 which states:
(a) Creation, sale, or possession.--Whoever
knowingly creates, sells, or possesses a depiction
of animal cruelty with the intention of placing that
depiction in interstate or foreign commerce for
commercial gain, shall be fined under this title or
imprisoned not more than 5 years, or both.
The statute further establishes that the law “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The statute also refers to the law that defines illegal animal cruelty; the action is illegal in the United States.
Stevens appealed on the basis that his conviction violated his First Amendment rights, taking the case the the U.S. Supreme Court. The Court reversed his conviction and that is the issue at hand.
Liptik's statement above was referring to the motivation of the creation of statute 48: “crush videos.”
“Crush videos” are “ A crush video is a depiction of 'women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.” These videos are considered “obscene.”
The issue with the Stevens' case is that the videos he marketed and sold are not considered “obscene” or “crush videos.” His conviction and appeal brought to light the argument of whether or not the depiction of illegal animal abuse should be categorized as unprotected speech.
The Supreme Court said “no.”
The Court brought up many very important issues regarding the law, especially the law's definition. The Government attempted to reference the Miller case, in which the SLAPS test emerged from, by justifying the exceptions test within statute 48. The Justices pummeled the court with various hypotheticals that would challenge the vagueness of statute 48's exception test which states that exempt material must have “serious religious, political, scientific, educational, journalistic, historical, or artistic value:” the educational and artistic value of Spanish bullfighting; depictions of hunting aired in the off-season; “stuffing geese for pate de foie gras.” The list goes on.
The Justices illustrated the “over breadth” of the law as it is currently written. The law was intended to prevent and prohibit “crush videos,” yet it states nothing regarding “prurient interests” or “obscene” content.
I agree that Ferber should not apply to this case. This case deals with animals and not humans. Humans take precedence over animals and the physical and psychological consequences are different among the two.
I understand the logic behind the scrutiny that the Justices applied, but I do think that there should be a law that prohibits the creation, sale, and possession of depictions of animal cruelty for a variety of reasons.
The same principles that support the prohibition of the action, in this case animal cruelty and abuse, should give some foundational support to a law prohibiting the depiction of such actions. Even within the U.S. v. Stevens documents, it says:
“The acts of animal cruelty that form the predicate for § 48 are reprehensible, and indeed warrant strong legal sanctions. The Government is correct in arguing that animal cruelty should be the subject of not only condemnation but also prosecution.”
It does not makes sense to me that the Court would feel so strongly about the actions and yet not support (on some level) the creation of a law that prohibited the creation, sale, and possession of such material. It was only Justice Breyer that hinted at this possibility when he stated, “Rather than let the public guess what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit.”
I totally agree with him.
I would adopt the philosophy of Zecheriah Chafee and label these depictions “worthless” and unprotected.
I cannot find a “slight social value as a step toward truth” in a video of a woman taking her heel or foot and crushing an animal for her and her audience's sick pleasure.
Furthermore, besides finding depictions of animal cruelty and abuse utterly worthless, there is an interest in protecting society from not only seeing these types of materials but discouraging the desensitization of society to animal cruelty. Animal cruelty has been linked to youth violence, as well as violence in general.
One could possibly argue Feinberg's Offense theory, and state that there is little social value and yet a great degree of offense among the majority of the public, therefore the amount of protection may be questioned and possibly limited.
Unfortunately, the law as it stands is not clear enough and therefore it is unconstitutional.
Wednesday, November 25, 2009
Tuesday, November 10, 2009
Suspended Speech
The difference between silent political protest and libelous gossip is obvious, but should they be equally protected?
The question being raised is whether or not the lower court of Pennsylvania was correct in their ruling regarding the First Amendment rights of a middle school student who was suspended for 10 days for creating a fake Myspace profile for her principle that contained false derogatory statements. The lower court ruled that J.S.'s (the student involved in the suit) First Amendment rights had not been violated and that the principle had been justified in his punishment of the student. The court supported this ruling by applying Bethel v. Fraser.
I am in agreeance with the lower court's ruling that the student's First Amendment rights were not violated, despite the fact that the site was created off of school grounds. I will support my view doctrinally and philosophically.
Doctrinally, I will examine Tinker v. Des Moines and Bethel v. Fraser cases and how they apply to this particular case. Both cases establish laws and parameters regarding the free speech rights of students. I will argue that J.S.'s speech did not fall into the parameters set forth by the ruling in Tinker v. Des Moines and that because of the nature of her speech, the case Bethel v. Fraser was properly applied by the lower court.
First Amendment philosopher, Zechariah Chafee, argued that not all speech should be protected such as speech that is “profane, indecent, or defamatory.” Chafee argued that speech of this nature has little social value and rarely does anything to encourage or stimulate the search for truth. He also argued that speech should be a vehicle in the “training of the young.” J.S.'s speech was derogatory and libelous. It did not make a political statement and was of little value, furthermore, it was a disruption to learning.
In the landmark case of Tinker v. Des Moines, the Supreme Court Justice Fortas stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” thereby establishing that students do indeed have First Amendment rights. But he later stated that,
“But conduct by the student, in class or out of it, which for any reason---
whether it stems from time, place, or type of behavior---materially,
disrupts classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech.”
J.S. argued that Tinker v. Des Moines should be applied to her case and even though the lower court found that Bethel v. Fraser be a more appropriate and accurate case to apply to the ruling, J.S.'s speech, I believe, did not fall into the parameters set forth by Tinker v. Des Moines.
The profile made by J.S. and her friend was initially shown to 20 students, the site was accessed at school, and then she printed and distributed copies of the profile at school. She wanted students to know about it. The principle learned about the site from a teacher which proves that a disruption in learning had most likely occurred. The extent of the disruption is not cited in the article and one must establish the difference between school gossip, which is inevitable, and speech with serious ramifications. Despite this, the evidence above does establish the foundation for a disruption in learning that may in fact have occurred.
But it is the nature of the content of the page that would have inevitably caused a disruption and invaded the rights of the subject, the principle. In the fabricated profile she made statements that the principle was a pedophile and was interested in pornography. These statements not only disrupt learning but could erode the reputation and the level of trust students, parents, and teachers put into a principle of a school. False statements and accusations like these are like a wildfire, especially in a setting where minors are involved.
Because of the nature of the statements made by J.S., the Pennsylvania lower court applied Bethel v. Fraser. U.S. District Court Judge James M. Munley stated,
”The speech does not make any type of political statement....It is merely an attack
on the school’s principal. It makes him out to be a pedophile and sex addict. This
speech is not the Tinker silent political protest. It is more akin to the lewd and
vulgar speech addressed in Fraser.”
The Bethel v. Fraser case established that school officials have the right to punish “offensively lewd and indecent speech,” therefore justifying the principle's decision to suspend J.S.
Zechariah Chafee would most likely agree with this decision. Chafee argued that speech should be protected because it is a means of attaining truth, furthermore, he did not extend this protection to “profane, indecent, or defamatory” speech because of its lack of social value. J.S.'s speech was untrue, defamatory, and did not promote “the training of the young.” It was vengeful gossip that she intended to spread for whatever reason.
Although I do believe that students have First Amendment rights, I also believe that a school is for learning and that a certain atmosphere must be established and maintained for this to occur. Therefore, I believe that schools, school boards, and districts have the right to punish some speech that interferes with this atmosphere, but should also recognize that free speech is a contributing factor to learning. For this I believe that the lower court of Pennsylvania was accurate in their ruling in the case of J.S. v. Pennsylvania.
The question being raised is whether or not the lower court of Pennsylvania was correct in their ruling regarding the First Amendment rights of a middle school student who was suspended for 10 days for creating a fake Myspace profile for her principle that contained false derogatory statements. The lower court ruled that J.S.'s (the student involved in the suit) First Amendment rights had not been violated and that the principle had been justified in his punishment of the student. The court supported this ruling by applying Bethel v. Fraser.
I am in agreeance with the lower court's ruling that the student's First Amendment rights were not violated, despite the fact that the site was created off of school grounds. I will support my view doctrinally and philosophically.
Doctrinally, I will examine Tinker v. Des Moines and Bethel v. Fraser cases and how they apply to this particular case. Both cases establish laws and parameters regarding the free speech rights of students. I will argue that J.S.'s speech did not fall into the parameters set forth by the ruling in Tinker v. Des Moines and that because of the nature of her speech, the case Bethel v. Fraser was properly applied by the lower court.
First Amendment philosopher, Zechariah Chafee, argued that not all speech should be protected such as speech that is “profane, indecent, or defamatory.” Chafee argued that speech of this nature has little social value and rarely does anything to encourage or stimulate the search for truth. He also argued that speech should be a vehicle in the “training of the young.” J.S.'s speech was derogatory and libelous. It did not make a political statement and was of little value, furthermore, it was a disruption to learning.
In the landmark case of Tinker v. Des Moines, the Supreme Court Justice Fortas stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” thereby establishing that students do indeed have First Amendment rights. But he later stated that,
“But conduct by the student, in class or out of it, which for any reason---
whether it stems from time, place, or type of behavior---materially,
disrupts classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech.”
J.S. argued that Tinker v. Des Moines should be applied to her case and even though the lower court found that Bethel v. Fraser be a more appropriate and accurate case to apply to the ruling, J.S.'s speech, I believe, did not fall into the parameters set forth by Tinker v. Des Moines.
The profile made by J.S. and her friend was initially shown to 20 students, the site was accessed at school, and then she printed and distributed copies of the profile at school. She wanted students to know about it. The principle learned about the site from a teacher which proves that a disruption in learning had most likely occurred. The extent of the disruption is not cited in the article and one must establish the difference between school gossip, which is inevitable, and speech with serious ramifications. Despite this, the evidence above does establish the foundation for a disruption in learning that may in fact have occurred.
But it is the nature of the content of the page that would have inevitably caused a disruption and invaded the rights of the subject, the principle. In the fabricated profile she made statements that the principle was a pedophile and was interested in pornography. These statements not only disrupt learning but could erode the reputation and the level of trust students, parents, and teachers put into a principle of a school. False statements and accusations like these are like a wildfire, especially in a setting where minors are involved.
Because of the nature of the statements made by J.S., the Pennsylvania lower court applied Bethel v. Fraser. U.S. District Court Judge James M. Munley stated,
”The speech does not make any type of political statement....It is merely an attack
on the school’s principal. It makes him out to be a pedophile and sex addict. This
speech is not the Tinker silent political protest. It is more akin to the lewd and
vulgar speech addressed in Fraser.”
The Bethel v. Fraser case established that school officials have the right to punish “offensively lewd and indecent speech,” therefore justifying the principle's decision to suspend J.S.
Zechariah Chafee would most likely agree with this decision. Chafee argued that speech should be protected because it is a means of attaining truth, furthermore, he did not extend this protection to “profane, indecent, or defamatory” speech because of its lack of social value. J.S.'s speech was untrue, defamatory, and did not promote “the training of the young.” It was vengeful gossip that she intended to spread for whatever reason.
Although I do believe that students have First Amendment rights, I also believe that a school is for learning and that a certain atmosphere must be established and maintained for this to occur. Therefore, I believe that schools, school boards, and districts have the right to punish some speech that interferes with this atmosphere, but should also recognize that free speech is a contributing factor to learning. For this I believe that the lower court of Pennsylvania was accurate in their ruling in the case of J.S. v. Pennsylvania.
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