In the past couple of weeks, I have been busy reading and critiquing the book "Critiquing Free Speech: First Amendment Theory and the Challenge of Interdisciplinary," by Matthew D. Bunker. The book was an interesting read, and brought up numerous theories and interpretations throughout the chapters within. I realize that there is too much information for me to comment on every theory or theorist in the book, so I have decided to focus on the concept of the individual vs. the community in relation to the many theories in the book. I noticed that most of the book tends to relate back to this concept.
The first chapter is a nice overview of many of the standard first amendment theories, such as the marketplace of ideas, or the individual autonomy theory. Even within these theories we begin to see a divide on the individual v. the community. The marketplace of ideas theory focuses on the community, allowing ideas and opinions to flow freely throughout society, allowing all viewpoints to be heard. On the other hand, the individual autonomy theory places primary focus on the individual. This theory claims the freedom of speech and expression are imperative to individual liberty, regardless of the products produced. An individual cannot truly be free or independent or even truly human without the liberty of free speech. As we will see, this beginning chapter has set the stage for more eclectic or obscure theories and their battles between the individual v. the community.
Now I will mostly skip around the book, discussing some of the more interesting theories I discovered and how they relate to the concept of the individual v. the community. The first unique concept I discovered was a theory focusing on society and the community: Judge Richard A. Posner's First Amendment Formula. In short, Judge Posner uses economics and mathematics in order to create and actual mathematic formula for regulating speech. His formula states that government can only regulate speech if "V + E < l =" social" e =" the">
find this totally ridiculous. How can one formulate the social value of speech? I think Posner's focus on society is his formula's downfall, as he assumes that all of these values mean the same thing to everyone, as if there was one commonly held value by society of certain kinds of speech. However, every individual has their own interpretation of what the social cost (L) or the value (V) of speech may be. This is why I feel this theory is somewhat useless to be perfectly honest.
However, Posner's theory actually uses another first amendment theory in its construction: reductionism. Reductionism is about reducing law to the domain of other disciplines. Posner reduced law to the disciplines of mathematics and economics. Some think law is just politics in disguise. More and more laws are being reduced down to lay person's terms. Opponents of reductionism feel that law deserves its own "autonomous domain of knowledge." It was hard at first for me to understand and choose a side on this theory, so I equated it to something I was more familiar with. As a future music educator, it's important for me to acknowledge unique musical content in my classroom. Only in music class can a student learn about "crescendos" and what clefs there are. However, it's also necessary for me to connect things learned in my music classroom to other subjects, so that students see how all kinds knowledge work together to achieve proper learning. In law, I think it's necessary that law retains some of its own vocabulary and content. However, it is impossible NOT to reduce law in some ways, as law is dependent upon many other things. As the book quotes, "law is just a reflection of truth," so whatever is necessary to achieve this truth, that too must be reflected in law. However, in that case "truth" is dependent upon the individual, so this reductionist claim puts priority on the individual and their interpretations.
Finally, I want to discuss the most interesting theorist I read about in this book, Stanley Fish. Fish has very unique views on first amendment theory. Above all, Fish is a staunch believer of the community over the individual. He believes individuals belong to "interpretive communities." This means that there is no one community that encompasses all of mankind. Instead, people associate themselves with groups of people who share common beliefs and values. Fish believes everyone makes decisions based on their interpretive communities. This also means judges. Fish believes that judges and juries don't use judicial theory (there's no such thing according to him) but instead base all of their decisions based on predispositions based on their interpretive community. This is why, he argues, judges come up with different rationales with different decisions. Even the theories and texts that judges read and quote in their decisions are just text being interpreted in a specific way by the individual. Fish also believes there is no such things as absolute free speech, for the community will always draw a line. Such as with obscenity or fighting words. There is also no free speech as all speech has a political agenda according to Fish.
Fish's thoughts are radical. Fish believes that people have no unique thoughts, but base all decisions based on their interpretive communities. Part of me has to agree with Fish. Hardly ever do I hear someone with a truly unique perspective. Often. we use quotes, research, or the theories of someone else in order to establish our thoughts and beliefs. I believe the United States of America is the greatest country on Earth. But couldn't that be based on my family's beliefs, knowledge of United States history, or patriotism learned from my interpretive community? Even searching my own thoughts, I can't think of a belief or morale that hasn't been instilled by, or aligns itself with, someone else in my surrounding community. Even fads are the result of influence on an individual by their interpretive communities. I was told I needed to buy a tamogotchi in 2nd grade if I was to be cool, I grew up a Cubs fan because that's what my family told me was best, and doctors tell us to eat or veggies or we'll be sorry one day. It's scary, but sometimes I feel that everything we do or say in life isn't unique. I realize that there is room for uniqueness in our lives, but as a norm I feel we are led through life. Benjamin Franklin proved lightening was electricity and Stephen Hawking discovered Hawking Radiation in a black hole. Both are individual accomplishments. But aren't both of their discoveries based on the work done in their communities before them? It's interesting to consider...
Overall, I thought this was an interesting book. It gave overviews and critiques of numerous theories. The first chapter overview was nice, and the other chapters introduced me to some unique thoughts and viewpoints that I would have never considered otherwise. It was a bit wordy however, and sometimes I found myself lost or confused while reading all this law talk. Maybe a bit more reduction would have helped me.
Sunday, April 26, 2009
Monday, April 6, 2009
F*ck I'm a Felon!
Today while online, I discovered an interesting news article concerning profanity in South Carolina. Senator Robert Ford (D) of South Carolina, introduced a bill to outlaw profanity and lewd language in public, as well as making it illegal to disseminate to minors. Here are a few excerpts from the proposed bill
"Section 16-15-370. (A) It is unlawful for a person in a public forum or place of public accommodation willfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions or profance, vulgar, lewd, lascivious, or indecent nature."
"Section 16-15-439. (A) It is unlawful for a person to disseminate previous profanity next to a minor if he willfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature."
It's interesting to note that this bill makes these crimes a FELONY, which can land you in jail for up to five years with a maximum fine of $5000. A felony, as defined from the dictionary at law.com, is defined as:
1. A crime sufficiently serious to be punishable by death or a term in a state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail/or a fine.
AND
2. A crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail.
So is swearing in public worth being labeled a felon for the rest of your life? First, we have to look at whether this law is even legal and in line with the first amendment. To be honest, my first reaction, as well as many of yours, will presumably be "NO!" To begin with, as discussed in Cohen v California, there are three kinds of speech that are not protected:
1. Appealing to the prurient interest: "a shameful or morbid interest in nudity, sex, or excretion."
2. Fighting words directed at a particular person
3. Thrust upon an unwilling audience, especially in the private realm.
Profanity is not in that list. In fact, in Harlan's opinion, he makes it clear that when it came to the public sphere, the burden was on the receiver to deal with the speech, presumably by "averting their gaze," either literally or figuratively. This is a very libertarian approach. So far, it seems that profanity should be protected in public.
But not so fast. The first amendment is not absolute as we know: you can't always just say whatever you want, whenever, and to whomever. There are limits. Should profanity in public or in front of a minor be one of those limits is the question. In Chaplinsky v New Hampshire, (I couldn't find it on lexis-nexis, but the link is to the opinion) the court made it clear that even if some did find a benefit to vulgar or profane statements, it was "clearly outweighed by the social interest in order and morality." So, as a country, do we have a moral obligation to not curse in front of our children? Even in the Cohen opinion there are doubts and confusions. As the article "A look back at Cohen v California" in the UCLA Law Review states:
"Cohen v California has settled the proposition that a criminal statute is unconstitutional if it punishes all public use of profanity without reference to details such as the nature of the location and audience. The opinion, however, left much to be decided about government controls on the use of profanity based on considerations of time, place, and manner. To what extent can profanity be punished because of the nature of the audience, the nature of the occasion on which it is uttered or displayed, or the manner of its utterance or display? Part of the difficulty, of course, stems from the nearly infinite number of imaginable factual situations. The ambiguity of the Harlan opinion adds to these difficulties."
So basically, the South Carolinian government has decided to control the "time, place, and manner" of profanity by completely banning it in public and in front of a minor. However, I feel like they are taking their power too far. I believe this bill seems to fall under the category of punishing all public use of profanity, which we've seen is illegal as stated in Cohen. The concept of protecting minors, especially very young children, from vulgar language is applaudable, but the bill is much too broad. Under this law, many artistic outlets would be smothered. Here are some examples, the first three being taken from a blog I found that also speaks of this bill:
- Giving or lending a book or movie to a minor with profanity in it.
- Not letting a minor read the King James Version Bible, as it contains the excretory word "piss."
- Not being able to swear in front of your own child, regardless of age. (They could be 16, and you're still a felon!)
- Minors could not watch movies with swear words in it, or check out books from the library with profanity in them.
- Letting your child listen to music with swear words, such as "shit" in them would make you a felon.
- Teens could not swear in school without being a felon. (would any teen NOT be a felon?)
- What about the internet? Is that not public? How do you stop minors from reading profanity online wihout extreme content regulation?
I believe this law is too vague. The government should not interfere with the morals and values we teach our children. Who decides what profanities are ok or not anyways? 50 year ago, hardly anyone said "fuck." Now it is extremely prevalent. Times change. What if parents feel ok letting their child hear or even say "shit" or "damn?" That should be a parental decision. It is not up to the government to decide what words are appropriate or morale for one's own child. Besides, speech in public would become "fit for children" (literally!) and I believe that the burden is on the receiver. If you don't want your child watching an R rated movie at 16 years old, then that's your perrogative. But the government shouldn't be able to FORBID a parent from letting them, as a parent knows best if their child is mature enough. The government needs to leave parenting to the parents...
FUN FACT! (Taken from the Volokh blog I found!)
"Two 16 year olds can be sexually involved in South Carolina (as can an adult and a 16 year old), but under this new law they'd be felons if they talked lewdly to each other." (Section 16-15-140 of the bill)
Wow, talk about hypocrisy!
"Section 16-15-370. (A) It is unlawful for a person in a public forum or place of public accommodation willfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions or profance, vulgar, lewd, lascivious, or indecent nature."
"Section 16-15-439. (A) It is unlawful for a person to disseminate previous profanity next to a minor if he willfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature."
It's interesting to note that this bill makes these crimes a FELONY, which can land you in jail for up to five years with a maximum fine of $5000. A felony, as defined from the dictionary at law.com, is defined as:
1. A crime sufficiently serious to be punishable by death or a term in a state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail/or a fine.
AND
2. A crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail.
So is swearing in public worth being labeled a felon for the rest of your life? First, we have to look at whether this law is even legal and in line with the first amendment. To be honest, my first reaction, as well as many of yours, will presumably be "NO!" To begin with, as discussed in Cohen v California, there are three kinds of speech that are not protected:
1. Appealing to the prurient interest: "a shameful or morbid interest in nudity, sex, or excretion."
2. Fighting words directed at a particular person
3. Thrust upon an unwilling audience, especially in the private realm.
Profanity is not in that list. In fact, in Harlan's opinion, he makes it clear that when it came to the public sphere, the burden was on the receiver to deal with the speech, presumably by "averting their gaze," either literally or figuratively. This is a very libertarian approach. So far, it seems that profanity should be protected in public.
But not so fast. The first amendment is not absolute as we know: you can't always just say whatever you want, whenever, and to whomever. There are limits. Should profanity in public or in front of a minor be one of those limits is the question. In Chaplinsky v New Hampshire, (I couldn't find it on lexis-nexis, but the link is to the opinion) the court made it clear that even if some did find a benefit to vulgar or profane statements, it was "clearly outweighed by the social interest in order and morality." So, as a country, do we have a moral obligation to not curse in front of our children? Even in the Cohen opinion there are doubts and confusions. As the article "A look back at Cohen v California" in the UCLA Law Review states:
"Cohen v California has settled the proposition that a criminal statute is unconstitutional if it punishes all public use of profanity without reference to details such as the nature of the location and audience. The opinion, however, left much to be decided about government controls on the use of profanity based on considerations of time, place, and manner. To what extent can profanity be punished because of the nature of the audience, the nature of the occasion on which it is uttered or displayed, or the manner of its utterance or display? Part of the difficulty, of course, stems from the nearly infinite number of imaginable factual situations. The ambiguity of the Harlan opinion adds to these difficulties."
So basically, the South Carolinian government has decided to control the "time, place, and manner" of profanity by completely banning it in public and in front of a minor. However, I feel like they are taking their power too far. I believe this bill seems to fall under the category of punishing all public use of profanity, which we've seen is illegal as stated in Cohen. The concept of protecting minors, especially very young children, from vulgar language is applaudable, but the bill is much too broad. Under this law, many artistic outlets would be smothered. Here are some examples, the first three being taken from a blog I found that also speaks of this bill:
- Giving or lending a book or movie to a minor with profanity in it.
- Not letting a minor read the King James Version Bible, as it contains the excretory word "piss."
- Not being able to swear in front of your own child, regardless of age. (They could be 16, and you're still a felon!)
- Minors could not watch movies with swear words in it, or check out books from the library with profanity in them.
- Letting your child listen to music with swear words, such as "shit" in them would make you a felon.
- Teens could not swear in school without being a felon. (would any teen NOT be a felon?)
- What about the internet? Is that not public? How do you stop minors from reading profanity online wihout extreme content regulation?
I believe this law is too vague. The government should not interfere with the morals and values we teach our children. Who decides what profanities are ok or not anyways? 50 year ago, hardly anyone said "fuck." Now it is extremely prevalent. Times change. What if parents feel ok letting their child hear or even say "shit" or "damn?" That should be a parental decision. It is not up to the government to decide what words are appropriate or morale for one's own child. Besides, speech in public would become "fit for children" (literally!) and I believe that the burden is on the receiver. If you don't want your child watching an R rated movie at 16 years old, then that's your perrogative. But the government shouldn't be able to FORBID a parent from letting them, as a parent knows best if their child is mature enough. The government needs to leave parenting to the parents...
FUN FACT! (Taken from the Volokh blog I found!)
"Two 16 year olds can be sexually involved in South Carolina (as can an adult and a 16 year old), but under this new law they'd be felons if they talked lewdly to each other." (Section 16-15-140 of the bill)
Wow, talk about hypocrisy!
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