From the birth of freedom of speech in Athens when aristocratic rulers allowed certain classes of citizens to express their opinions without fear, there have been disagreements as to how far man should be allowed to express himself. The United States of America has adopted Athens’ idea of freedom of speech for the survival of a democracy. We have also inherited the problem of deciding what doesn’t fall under the guidelines of free expression. By looking at a few current communication justice controversies, the principles that should guide our understanding of communication justice and freedom of expression will become more evident. I chose to look at three specific cases that are areas of concern in current communication justice; Bogglers’ rights, obscenity, as well as arts and free expression.
Before getting into each case I think that it is important to acknowledge a central idea of a system of freedom of expression. The distinction between expression and action is important because, “expression must be freely allowed and encouraged,” whereas, “Action can be controlled, subject to other constitutional requirements, but not by controlling expression…” (Tedford, Herbeck, 2005). This distinction is not always so clear because sometimes action can be in the form of expression. The burning of draft paper to boycott the war, or lying in front of a bulldozer to stop environmental destruction are examples of how action and expression can intertwine. Thomas I. Emerson’s Expression-Acton Theory points out the importance of this distinction because our Supreme Courts’ failure to apply any single theory to free speech cases. Emerson’s theory provides clear principles to help our understanding of communication justice and freedom of expression.
This distinction between expression and action brings me to the first communication justice case of obscenity. This case focuses on a current problem of adolescents sending pornographic pictures to each other via cell phones. A result is that all over the country kids as young as the 13 are being arrested and charged with sexual abuse of children, and dissemination of child pornography. This act that has been deemed as “sexting”, which clearly falls under Emerson’s definition of obscene action. Most of what society calls “obscenity” is protected under the expression action theory, but this case differs because it, “consists of live conduct.... sexual materials thrust upon unwilling receivers so as to produce a “shock effect” (Tedford, Herbeck, 2005). I agree that the production of underage pornography should be prohibited and laws should be enforced, although, like most freedom of expression cases, there are no clear cut laws to make judgments on any case. For instance, what if both kids are participants in the action and neither is having the material thrust upon them. I also concur that if an adolescent is sending out self pornography to unwilling receivers that they should be prosecuted as a minor by the court system, but like most cases, the outcome should be minimal. We need to send a message to others but not ruin the lives of those involved. We can not ignore the inevitable mistakes children will make while maturing.
The next case is one that hits home for me personally. This case revolves around arts and free expression when a Cincinnati sports fan took his heckling too far. Jeffry Swiecicki was arrested at a 2001 baseball game at Jacobs Field when police officers saw him heckling a player on the team, and charged him with disorderly conduct and resisting arrest. The charges were overturned on appeal and the fan later sued, charging his First Amendment right to free speech was violated, among other claims. For this specific case the actual remarks the fan made are not for sure, because he and the arresting officer had conflicting versions of the events at the game. This is a common occurrence at sporting events. For some fans, heckling the opposing team has become more important than cheering for the home team. I have played multiple team sports throughout my life and have been exposed to both just and unjust hecklers. The infamous “boo” or even “you suck” and other common heckles that go with specific sports are not the problem that need to be addressed. It is when a fan directs their defamation at a specific player or, “private individual in a way that does harm to those persons feelings” (Tedford, Herbeck, 2005) that both Emerson and I agree that such speech is no longer protected. Obscene gestures, racial or sexual remarks, and personal threats are all examples of “defamatory assault”. One way to prevent cases like this is for organizations like the National Basketball Association, to put conditions on tickets and announcing before games that such acts are illegal, as well as the ramifications of such actions to remind fans of their responsibilities as a viewer. Sometimes fans become so engrossed in the emotion of the game that they forget the players on the field are human beings just like them.
The last case relates very closely to the next, because they both emphasize the actions that can lead to “defamatory assault”. This case was about a gossip web site called “JuicyCampus.com” where college students would gossip about campus life. The site became problematic when hateful and offensive chatter about other students began to be printed. One example is when rumors that a specific student had certain sexually transmitted diseases were posted. Like the last case, this is speech that makes the transition into a defamatory action, because the comments are being directed at a specific person. Such personal libel could have a negative affect not only on their personal feelings, but also affect their peers’ perception of them. It is important to point out that if such allegations and remarks were being spread by word of mouth such speech would be permitted; but because it was being posted in a public domain it is not.
The laws that support the First Amendment are not cut and dry, and technology makes the lines of the laws even more transparent. How could a document created hundreds of years ago even imagine the development of our society? Our laws, like our society, should develop as well. Freedom of speech is no question a vital part of the democracy we live in, but let us also recognize when speech makes the transition into action it can have a detrimental effect. As time goes on and society grows, so will our understanding of effectiveness of our First Amendment laws.
Before getting into each case I think that it is important to acknowledge a central idea of a system of freedom of expression. The distinction between expression and action is important because, “expression must be freely allowed and encouraged,” whereas, “Action can be controlled, subject to other constitutional requirements, but not by controlling expression…” (Tedford, Herbeck, 2005). This distinction is not always so clear because sometimes action can be in the form of expression. The burning of draft paper to boycott the war, or lying in front of a bulldozer to stop environmental destruction are examples of how action and expression can intertwine. Thomas I. Emerson’s Expression-Acton Theory points out the importance of this distinction because our Supreme Courts’ failure to apply any single theory to free speech cases. Emerson’s theory provides clear principles to help our understanding of communication justice and freedom of expression.
This distinction between expression and action brings me to the first communication justice case of obscenity. This case focuses on a current problem of adolescents sending pornographic pictures to each other via cell phones. A result is that all over the country kids as young as the 13 are being arrested and charged with sexual abuse of children, and dissemination of child pornography. This act that has been deemed as “sexting”, which clearly falls under Emerson’s definition of obscene action. Most of what society calls “obscenity” is protected under the expression action theory, but this case differs because it, “consists of live conduct.... sexual materials thrust upon unwilling receivers so as to produce a “shock effect” (Tedford, Herbeck, 2005). I agree that the production of underage pornography should be prohibited and laws should be enforced, although, like most freedom of expression cases, there are no clear cut laws to make judgments on any case. For instance, what if both kids are participants in the action and neither is having the material thrust upon them. I also concur that if an adolescent is sending out self pornography to unwilling receivers that they should be prosecuted as a minor by the court system, but like most cases, the outcome should be minimal. We need to send a message to others but not ruin the lives of those involved. We can not ignore the inevitable mistakes children will make while maturing.
The next case is one that hits home for me personally. This case revolves around arts and free expression when a Cincinnati sports fan took his heckling too far. Jeffry Swiecicki was arrested at a 2001 baseball game at Jacobs Field when police officers saw him heckling a player on the team, and charged him with disorderly conduct and resisting arrest. The charges were overturned on appeal and the fan later sued, charging his First Amendment right to free speech was violated, among other claims. For this specific case the actual remarks the fan made are not for sure, because he and the arresting officer had conflicting versions of the events at the game. This is a common occurrence at sporting events. For some fans, heckling the opposing team has become more important than cheering for the home team. I have played multiple team sports throughout my life and have been exposed to both just and unjust hecklers. The infamous “boo” or even “you suck” and other common heckles that go with specific sports are not the problem that need to be addressed. It is when a fan directs their defamation at a specific player or, “private individual in a way that does harm to those persons feelings” (Tedford, Herbeck, 2005) that both Emerson and I agree that such speech is no longer protected. Obscene gestures, racial or sexual remarks, and personal threats are all examples of “defamatory assault”. One way to prevent cases like this is for organizations like the National Basketball Association, to put conditions on tickets and announcing before games that such acts are illegal, as well as the ramifications of such actions to remind fans of their responsibilities as a viewer. Sometimes fans become so engrossed in the emotion of the game that they forget the players on the field are human beings just like them.
The last case relates very closely to the next, because they both emphasize the actions that can lead to “defamatory assault”. This case was about a gossip web site called “JuicyCampus.com” where college students would gossip about campus life. The site became problematic when hateful and offensive chatter about other students began to be printed. One example is when rumors that a specific student had certain sexually transmitted diseases were posted. Like the last case, this is speech that makes the transition into a defamatory action, because the comments are being directed at a specific person. Such personal libel could have a negative affect not only on their personal feelings, but also affect their peers’ perception of them. It is important to point out that if such allegations and remarks were being spread by word of mouth such speech would be permitted; but because it was being posted in a public domain it is not.
The laws that support the First Amendment are not cut and dry, and technology makes the lines of the laws even more transparent. How could a document created hundreds of years ago even imagine the development of our society? Our laws, like our society, should develop as well. Freedom of speech is no question a vital part of the democracy we live in, but let us also recognize when speech makes the transition into action it can have a detrimental effect. As time goes on and society grows, so will our understanding of effectiveness of our First Amendment laws.
Bibliography
1.Tedford, Thomas L, Dale A. Herbeck. Freedom of Speech in the United States.
5th ed. State College, 2005.
2. Redish, Martin. “The Value of Free Speech.” University fo penssylvania Law Review (1982); 591-645
