Animal Cruetly, We Have a Duty to Protect the Animals

The question in communicative justice raised by the case of United States vs. Stevens is whether or not the law with regards to banning depictions of illegal animal cruelty is constitutional or not. Although the law has been deemed unconstitutional in this case, should the law Congress passed be overturned or upheld? Furthermore, does the government have to provide a compelling reason for banning this speech or would a lower level of scrutiny suffice? Is the law too overbroad? I claim that the law Congress passed is constitutional and should be upheld. While the law many seem overbroad, the second part of the law that agrees to uphold “scientific, journalistic, religious or political value” makes it’s clear what is allowed and not allowed by the law.
In United States vs. Stevens, Mr. Stevens claimed that the animal cruelty law restricted his freedom of speech. As the civil libertarian, Zechariah Chafee argues, “the individual type of expression is important but that it does not weigh as heavily in the balance as does speech concerning the social interest.” The social interest in this case is the protection of animals. The majority of society feels that it is wrong to harm animals. Therefore, the depiction of this cruelty should be wrong as well. Chafee's use of The Social Interest Clause comes into play here. The Social Interest Clause, according to Chafee, is an attainment of truth when people are well informed on public issues. Therefore, if a animals rights organization has to show depictions of animal cruelty, that form of expression should be protected since they are working towards bringing truth to light. In the same way that the distribution of child pornography is wrong, the distribution of animal cruelty or animal pornography is wrong. It is the duty of our government to protect the people and animals living in our country and this law was designed to do just that.
Historically the practice has been that “fighting words (Chaplinsky vs. New Hampshire), some kinds of incitement (Brandenburg vs. Ohio) obscenity (Bethel vs. Fraser) and starting in 1982, no obscene pornography involving children (New York vs. Ferber) are outside the protection of the First Amendment.” (nytimes.com) Nonobscene pornography involving children was “a major constitutional shift…it is the only place in the First Amendment law where the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime.” This same constitutional shift should be applied to the issue of the depiction of animal cruelty. Cruelty to animals is not much different than cruelty to a child.

For the same five reasons that New York vs. Ferber was different than Miller vs. California, animals should be protected. First, the court should have a very compelling interest to protect animals (like they protect children) because both parties are marginalized pieces of society that often cannot speak for themselves. Second, the distribution of animal cruelty images is directly related to animal cruelty itself (in the same way that they found for child porn) Third, producing visual animal cruelty such as crush videos, there is a market being created for such distgusting behavior. Fourth, pictures of animals in pain has no artistic value and lastly, animal cruelty does not need to be deemed obscene before it can be made illegal. Just because there hasn't been much precedent on this issue, doesn't mean that something can't be done about it now.
Judge D. Brooks Smith, writing for the appeals court majority said, “While animals are sentient creatures worthy of human kindness and human care,” he wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace.” I claim that there is no way to tell whether or not animals are harmed by images of their suffering. One cannot seriously claim that they are not harmed by this; there is no way to tell. Until humans have access to the animal mind, there will be no way to prove. Until then, we must respect these creatures by giving them the benefit of the doubt. Animals should be protected from harm when possible.
While the Supreme Court overturned this law due to overbreadth, I claim that the law is not overbroad and states clearly what is not protected under the law. Looking at the actual words of the law, the SLAPS clause added to the end is a clear depiction of what should be protected and what should not be. In the same way that Mapplethorpe’s images were protected, depictions of animal cruelty used in scientific, political, journalistic or religious ways should be protected too. In October of this year, President Obama asked the Supreme Court and Congress to take a second look at the law. Because the President has veto power, the executive branch should yield to the President’s legislative goals. To justify my claim, I will rely on the above following forms of reasoning. Philosophically, doctrinally, structurally, socially and textually, I claim that the law Congress passed is constitutional and should be upheld. While the law many seem overbroad, the second part of the law that agrees to uphold “scientific, journalistic, religious or political value” makes it’s clear what is allowed and not allowed by the law.

Ali Al Timimi (post 2 revision)

The question in communicative justice raised by the case of Al Timimi vs. the U.S. is to what extent, when the nation faces war or a national emergency or some other threat to its national security, should speech that goes against the U.S. be protected? I believe that the imminent and immediate incitement standard suggested by the 1969 case of Brandenburg vs. Ohio should apply during times of war or during times that national security is threatened. As philosopher John Chafee argues, any form of political speech that promotes self-government should be protected. Furthermore, according to philosophers like Emerson, Haiman and Baker, words that work towards promoting self-fulfillment, should be protected since “growth is necessary for an individual.”

The case of Ali Al Timimi who was recently convicted for urging listeners to travel to Pakistan and take up arms against the American soldiers he thought would soon be sent to Afghanistan. A grand jury accused Al-Timimi of saying things that incite danger for the American people. The government then convicted him for treason; defined as a crime that covers some of the more serious acts of disloyalty to one's sovereign or nation. Also, he could have been convicted of violating the old Smith Act of 1940, defined as “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of, or to affiliate with, any such association.”

Historically, speech like this has been protected until it “incites limitless lawless action.” Brandenburg v. Ohio 1969 was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government couldn’t punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence.

Because Ali Al Timimi spoke these words very soon after the September 11^th attacks, the large majority of the American people felt that he was out of line and offensive. While some of what Timimi said could be seen as harmful, it was much more so offensive so the use of the offense principle would support my argument. While much of what Timimi said was harmful, I would argue that it did not completely incite danger. He spoke his views and spoke out against the U.S. but in a political manner. It could be said that he needed to speak this way for his own “necessary growth.” I would argue that if Ali Al Timimi were to return to trial today for the same crimes committed, he would not have the same punishment. I believe it what the majority cultural values that landed this man behind bars. In terms of structural deference, the legislative branch must yield to the sovereign powers of the executive branch in determining the motives behind threats against the U.S. during times of war. It would be up to the Supreme Court to decide how to handle what Timimi said, no judicial branch should have the power to convict someone of treason, especially during times of war.

Having proven my case, I claim that Ali Al Timimi engaged in a form of expression that helped him with personal growth. The words he used may have intended meant to incite harm but it never got that far. I truly believe that the cultural values of the time made the Supreme Court sensitive to words that were close to being a form of treason or a violation of the Smith Act. However, looking at the context of his background and the outcome of his leadership, he was not in violation of either.

The question in communicative justice raised by the case of Al Timimi vs. the U.S. is to what extent, when the nation faces war or a national emergency or some other threat to its national security, should speech that goes against the U.S. be protected? I believe that the imminent and immediate incitement standard suggested by the 1969 case of Brandenburg vs. Ohio should apply during times of war or during times that national security is threatened. That being said, Brandenburg vs. Ohio would support my idea that words that don’t aim to incite should be protected, even during times of war.

The Westboro Baptist Church (post 3 revision)

The question in communicative justice raised by the case of The Westboro Baptist Church vs. The United States of America is to what extent is The Westboro Baptist Church protected by the First Amendment? In other words, to what extent can the government punish Westboro? I claim that since The Westboro Church engages in fighting words, they are punishable by the Supreme Court. The Westboro group uses words that should not be valued in a marketplace to truth. They use words and make statements that should not be protected politically or in order to promote individual self-fulfillment. Using all three philosophical arguments from John Mill, John Stuart Mill, John Chafee, Emerson, Haiman and Baker the Westboro should be punished by the government of the United States. Protecting their speech is not essential to the pursuit of truth, the promotion of self-government or self-fulfillment.

Historically, individuals and group of people have been punished for using the same types of “fighting words.” In the case Chaplinsky v. New Hampshire of 1942, Chaplinsky was convicted of violating the public laws of New Hampshire by using words that were “offensive, derisive or annoying to any other person who is lawfully in any street of other public place.” Upon appeal, the Supreme Court upheld his conviction, rejecting the chance that his words were protected by the Constitution. The Supreme Court decided these words were likely to “inflict injury” upon the listener or “incite an immediate breach of the peace.” This case famously divided expression into two categories: that which has social value towards finding truth (worthwhile speech) and that, which has no social value (worthless speech). Within the category of worthless speech, there are two sub categories of “fighting words:” words that inflict injury upon the listener or words that incite an immediate breach of peace.

In similar cases, judges have established that these types of words are not socially valuable and should not be protected. The majority of our society feels that fighting words like the words used by the Westboro Church both injure the listener and incite a breach of peace. When Westboro members picket the funerals of heterosexual soldiers, they are injuring the family members at the funeral. When they hold up signs saying hurtful things towards homosexuals, they are asking for a breach of the peace and they harm the people they target their messages to. Based on their use of fighting words, I would apply the harm principle used by John Stuart Mill to my argument. Since their words are harmful and aim to injure, the First Amendment should not protect their words.

Under Virginia v. Black, the actions by the Westboro move toward provocation and even true threat given the “captive audiences” who might be present at funerals and the intrusions of the sounds. Since they come to places like funerals, often times, the people they target are members of a captive audience who don’t have much of a choice but to listen to their hateful words. The court case of Virginia v. Black dealt with the concept of captive audiences as well. When a burning cross was placed on the property of an African American family, the family had no choice but to be involved in the act of expression. Since the burning cross was placed there in order to inflict injury and intimidation, it was not protected. In Justice Thomas’ dissent, he argues that burning crosses become more behavior than speech. In the same way, picketing funerals and holding up signs is a behavior more than a speech, a behavior that seeks to incite.

Hate speech should only be protected when it has scientific, artistic or political value. If the hate speech is used simply as a form of behavior, harm, offense or injury, it should not be protected under the law. As soon as it steps over the line from having value, to hurting people, it becomes illegal. The question in communicative justice raised by the case of The Westboro Baptist Church vs. The United States of America is to what extent is The Westboro Baptist Church protected by the First Amendment? In other words, to what extent can the government punish Westboro? I claim that since The Westboro Church engages in fighting words, they are punishable by the Supreme Court. The Westboro group uses words that should not be valued in a marketplace to truth.

the tin drum- offensive & illegal (post 5)

The question in communicative justice raised by the film, The Tin Drum, is whether or not or to what extent the film is considered to be a form of child pornography. I claim that The Tin Drum is a form of child pornography since it promotes sexual performances by a child under the age of 16 by taking part in and distributing material which depicts such a performance. According to New York v. Ferber, the statute defines “sexual performance” as any performance that includes sexual conduct by such a child, and “sexual conduct” is in turn defined as an actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sad-masochistic abuse, or lewd exhibition of the genitals.

As philosopher Alexander Meiklejohn argues, protecting certain types of speech is not essential to the pursuit of truth. According to him, political speech should be protected while worthless speech or private speech has less protection. Philosophically, The Tin Drum is considered to be unprotected child pornography that does not contribute to worthwhile speech. Historically, The Tim Drum was one of the first occurrences of this type of child pornography. Those who wish to believe that it is not child pornography seem to think that it was made for artistic and historical purposes. However, taking account the context of modern times, a film like this would be banned.

In cases that have followed this film, people have been convicted of child pornography for lesser crimes. Children have been punished for taking photos of themselves and young couples have been prosecuted for sending promiscuous text messages to each other’s cell phones. While these examples are considered to be child pornography according to the law, they do not nearly compare to the offensive material seen in The Tin Drum. Looking at the actual law, the boy in the Tin Drum is participating in “sexual conduct” which means he is simulating sexual intercourse and masturbation.

The creators of this film are promoting and distributing this offensive and illegal material. The specific scene that comes to mind is when the little boy is resting his head on the woman’s genital area while laying in a bed. It is very obvious that this scene exists to re-create or simulate sexual intercourse or oral sex. Because this scene shows a child under the age of 16 participating in sexual acts, it is considered to be lewd and offensive. The majority of our society believes it is wrong for children to participate in sexual acts. It is furthermore even worse for an older person to participate in these acts with a child. For social, philosophical and legal reasons, The Tin Drum is a prime example of child pornography.

Because of the above reasons and grounds, I believe that The Tin Drum is a form of child pornography since it promotes sexual performances by a child under the age of 16 by taking part in and distributing material which depicts such a performance. According to New York v. Ferber, the statute defines “sexual performance” as any performance that includes sexual conduct by such a child, and “sexual conduct” is in turn defined as an actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sad-masochistic abuse, or lewd exhibition of the genitals.