Well, this class has come to a bittersweet close and it has truly been one of the most challenging yet enjoyable courses of my academics here at this University. In our first class we discussed the lack of discourse regarding communication rights in academia, and I soon realized this was an unfortunate truth. Communication rights are applicable when discussing academic dialogue in theory, social organization and the expression of our amendment rights. How can we express our amendment rights when we do not know the length of our freedoms and limitations? I will say with certainty that I will stay tuned to the future of communication rights, specifically in the pending decision of defining terrorism aid and minors rights in the aspects of sexting and legislation protecting LGBTQ students in the public school sector.
In this synthesis I will provide an overview of my past seven postings regarding the dynamics of communication rights. I will analyze my philosophical and doctrinal support in each case and seek if I retained constant theory foundations for every case. My initial though is that I did not remain constant, as I often gravitated toward my personal emotional appeals and personal ethics. I think it is hard to remain constant because of the personal experiences we each have and the biases we carry. This is one of the reasons I believe it would be difficult to perform the duties of a Supreme Court Justice. Justices have to act as representatives of our constitution, and not their personal ethics. We have read many Supreme Court cases, and read multiply majority opinions and dissents. For all cases, the constitution is the “bible” that determines decisions, yet sometimes due to the generality of laws that are being argued for an against court plaintiffs and defendants, supreme court justices find themselves at a liberty to apply their own personal beliefs, which in turn change the course of our nation.
After the wealth of information received in the duration of this course, I will define my current philosophical and doctrinal stance and explain my reasoning. I will also discuss the theories of harm and levels of scrutiny that I would apply in the future, particularly within different contexts or locations. Libel laws in respect to the burden of a speaker will also be discussed. My decisions in the different themes associated throughout this course will be also be outlined in specific to my consistency or lack thereof in my opinions. Lastly, I will be careful to analyze my personal appeals to cases and how this influenced my opinions.
To begin with, my first response in regards to the enduring controversy of my God, your speech, brought surprising results as I wrote my blog because I thought I would have different conclusions as I began the readings. As a Mexican-American Catholic, I adhere to creation science and respect the teachings of the bible and the Catholic Church. Yet, the controversy surrounding Ecce Homo, and Christian leaders denouncing these depictions, did not make me side with these Christian beliefs. Rather, I was accepting of the Ecce Homo images, and made a case to modernize the Ecce Homo views as those that would be supported by Jesus as the LGBTQ community has been and continues to be marginalized and oppressed. I also found that I had a change of heart when protection of speech in the case of the Little Bride and the Jyllands-Posten imagery satirizing Muhammad. In depictions of the Little Bride, I said that I would not protect this speech because I regarded it as hate speech, yet in depictions of the Jyllands-Posten, I would. As I write this, I would change my mind yet again and say that I protect both cases of speech, yet I think my personal bias led me to disagree with the Little Bride in the beginning. Like mentioned above, as a practicing Mexican-American Catholic I am in solidarity with the LGBTQ community, and I am outspoken about my beliefs. Yet, when I see a depictions in a Christian website like the Little Bride cartoons creating religious division and disrespect to the Muslim faith I am embarrassed and outraged because our media and private citizens could associate me with the same beliefs based on our shared Christian faith. Yet, I do not share those beliefs, and would never impose those same beliefs on my Muslim community and friends. While it is difficult to associate freedoms of speech around the world, due to different limitations of speech enacted in every country, I would want to be respectful of laws regarding speech associated with each country. I do believe we are an example in terms of free speech to other countries, yet imposing these beliefs on “developing countries,” is not the correct way to do this. Nothing good has ever come of political enforcement in other nations by a single nation; history is proof of this in terms of religiosity. I believe the Universal Declaration of Human Rights is a great way to begin the dialogue of basic human rights to all people, yet while we should be vocal of these rights around the world; we should also be patient for progress to arrive globally.
My second posting was in response to my peers postings on a bounded agora: Constructing, a Communication Justice Philosophy and trying to apply it. In all honesty, my initial look at these readings and questions overwhelmed me, and I found it easy to use my “free pass,” and not attend class nor respond to the reading questions. This turned out to be a mistake, as I did not do well on my responses to my peer’s blogs. I found that I did not have the proper foundations for the philosophers presented and the scrutiny levels discussed. I contradicted myself and did not fully understand the different levels of scrutiny, which further muddled my responses. Looking back now, all postings were in reference to the protections applied to the case of Holder vs. The Humanitarian Law Project. I would now say that I protect HLP speech under the first amendment and should therefore not be prohibited because it would violate first amendment rights. I agree with HLP in its argument that the provisions they are being criminalized for against "training”, providing "expert advice or assistance", or providing "service" or "personnel" to terrorist organizations are too vague to be applied to their intended speech. A close look of HLP’s activities should instead be investigated especially in response to the context of their interactions with organizations labeled as terrorists by the United States. I believe philosopher Alexander Meiklejohn should be cited as support for the protection of HLP. Meiklejohn’s philosophy centers binary speech regarding the political and the private. He believes political speech should be generously protected and private speech should be protected under the Fifth Amendment, with regards to due process, thereby limiting ones free speech protection. Due to HLP’s progress in communicating with a cited terrorist organization about their communication rights with our government and the UN, and having been free of physical and violent speech, I believe HLP’s speech would deem protection under Meiklejohn and should be protected, instead of persecuted by our government. I would then sanction our government to apply strict scrutiny. This level of scrutiny would protect the first amendment rights of HLP under the Constitution. Our government would have to provide a strong reason for the non-violent speech that HLP engaged in for their speech to be prohibited.
In my third posting regarding the lecture of “Sticks and Stones May Break My Bones, but Words Will Never Hurt Me,” I gravitated toward an emotional appeal after having read about the genocide that occurred in Rwanda, based on Hutu and Tutsi ethnic war battles. One document citing hatred for the Tutsis, called the Hutu Ten Commandments, deeply disturbed me. I had previously protected speech that was anti-religious and extremely disrespectful towards others like the Little Bride and Jyllands-Posten but I could not and cannot protect the speech of all Hutu’s and Tutsis combined because it created such hateful mentalities that turned deadly for decades. Similar to citing philosopher Zechariah Chafee, I am careful to cite the case of Chaplinsky v. New Hampshire due to the “fighting” word doctrine and tendency to incite a breach of peace, which I believe impede our rights substationally when placed in individual contexts because of the biases and generality that can surround fighting words and the belief of a breach of peace. Yet, in the case of Rwanda’s anti-ethnic genocide, disagreements between the Hutus and the Tutsis were not limited to one or a couple of individual instances, yet were based on constant rebuttals of anti-ethnic speech that called for violence within the Hutus and Tutsis over decades. This is why I chose not to protect the Hutus and Tutsis anti-ethnic speech, and I cited Chafee as support and the doctrines of fighting words and break of peace that jailed Chaplinsky speech decades back.
In reference to my fourth reply postings of “Sticks and Stones May Break.. But Words Will Never Hurt, - Protecting a Right To Defame,” the theme regarded responses to Canada’s and America’s libel protection laws. I cited support for Americas libel laws instead of Canada’s because we follow provisions of the Universal Declaration of Human Rights more closely. In this case, I presented philosopher Robert C. Post, as he believed that a community norm of respect for the individual made possible the concept of a Bill of Rights that protects individuals and minority groups within the community from the normative pressures of that very same community. Due to this, private citizens, especially those that do not adhere to the majority or popular opinion, would be protected. Therefore, in cases pertaining to libel, I would place the burden on the government to provide evidence against the speaker, thereby not persecuting speakers based on political agendas. For example, a speaker can easily lack proper representation and financial support if burden was directed to them, especially when facing larger corporations that are privileged with more financial interest and access to better representation.
The fifth posting regarding the “Perverse” Adult: A Right to Sexually Offensive Speech?” was definitely an intriguing topic. This lecture brought to light many critical issues facing minors and sex speech in our country today. Questions arose regarding the rights of minors associated through communication of popular media sources such as the use of texting and high school yearbooks. Two of the most problematic issues I walked away with this night concerned minors becoming victims and criminals of their own sex speech communication. The other issue concerned homophobia in the public school system. Today, minors are being both victimized and criminalized in regards to the current popular trend of sexting. Pornography laws were established to protect minors, yet current criminalization of minors have occurred due to the will-full distribution of their own semi or nude pictures, which may at times circulate among a group, rather than the one person intended. I believe we should rewrite our laws regarding child pornography so that young teens who willingly distribute photos deemed pornographic do not carry criminal charges for the rest of their lives which may impact their future substantially when applying to volunteer positions, internships, and places employment that involve youth. In the case of the film, “The Tin Drum,” I would separate this sex speech involving youth, from what I believe should be protected speech – sexting among minors. The Tin Drum is extremely disturbing as the depictions of sex acts and imagery is obscene and inappropriate to a young audience. I am even disturbed as an “adult.” The couples engaged in such sex acts and imagery are characters who are depicted as minors, but I differentiate this speech from sexting because it encourages such behavior and normalizes it to make it okay, these young couples are taking the roles of adult relationships, which is wrong. I don’t believe sexting to be portrayed in this manner as more minors are exposed to the current criminalization and are suffering possible repercussions of their sexting. The critical issue of homophobia was presented in a case that involved a young man who had purchased a page of his high school yearbook and included a picture of him kissing his partner. When the school principle found out about this picture, he ordered it to be blocked off, one by one using a dark permanent marker because he believed the picture to be obscene. What is unfortunate about his occurrence is that other pictures were allowed of heterosexual couples kissing, but because this was a same sex partnership, it was not – yet another awful case of homophobia in the public school system. I just read a recent article that would protect youth like this young man as a new bill is being proposed in Congress. U.S. Rep. Jared Polis is introducing this bill in Congress. It would protect students in the queer community and would make it illegal to discriminate against gay and lesbian school students. This bill is not the only one of its kind, and will receive substantial support as it is modeled after similar laws in at least 10 states.
The topic of The “Perverse” Child: A Right to Sexually Offensive Speech in my sixth posting was the most disturbing topic to engage in our final discussion. This is because I had never heard or seen “crush videos,” and as loving pet owner for years, I could not grasp my mind around such cruel animal abuse. I’ve tried to be cautious when citing my support of the Philosopher Zechariah Chafee, as I do not support his binary beliefs regarding worthwhile and worthless speech because they limit our individual rights as public citizens. Yet, in this case I had to cite his philosophy because animal cruelty triggered an emotional appeal. Many homes are filled with animals that are loving pets that are held dear to our hearts. Many times, as in our case, families regard their pets as additional family members. Yet, our extended family members as are being perpetuated in such hateful images of animal cruelty. I had to cite Chafee in order to get the urgency across that such cruelty of animals is wrong and should not be protected and therefore be regarded as worthless speech. An image of animal abuse is speech that does not add value to our society in scientific, literary means, artistic or political means. In addition, animal violence can have a lasting effect as I cited the cycle of violence that occurs when young children partake in animal cruelty and later on partake in other forms of criminal activity in their adult years. I wished that the dissenting opinions of the judges linking child pornography to depictions of animal cruelty had been a majority opinion, as those were my beliefs. Yet, I still have some hope that in the future, our government will change the law that Congress passed in 1999, by upholding the same foundation for animal protections, but including the criminalization of the possession and non-commercial distribution of imagery that lacks positive relationships with our nations pets. I will definitely lobby for this and use my voice and vote to have these new measures passed.
My decisions in the different themes associated throughout this course cite philosopher Alexander Chaffe the most in relation to other philosophers. Like stated in the beginning, I believe this is due to my personal convictions. While I wouldn’t particularly adhere to a binary philosophy of worthwhile and worthless speech, I am inclined to, due to the current controversies regarding communication rights. During these times of political and economic turmoil, I would be inclined to follow the philosophy of Alexander Meiklejohn. His protections of the political spectrum protect speech in all facts of modern virtual life, via twitter and facebook updates, blogging, article commenting and email correspondence. I cited Meiklejohn in support of the Humanitarian Law Project, and I will be monitoring the Supreme Courts deliberation and decision in excitement.
I am most comfortable with citing the citizen respect theory as the theory I would adhere to and that I would expect others to adhere to. I think mutual respect is of vital importance regarding interfaith and cross-cultural communication. The cases we studied regarding Jyllands-Posten and the Hutu Ten Commandments had irreversible damages in terms of lives lost and countless harmed mentally and physically. While I said that I would protect this speech, had the authors believe and acted upon the citizen respect theory, then perhaps such depictions would have been edited and introduced differently, or not produced at all, our of respect for others. I certainly believe in the power of the harm theory and the repercussions that can occur if not followed. Especially in the harm theory for bad tendency which if not respected could eventually lead to potential harm and a breach of peace. In addition to the citizen respect theory applied above for Jyllands-Posten and the Hutu Ten Commandments, the harm theory for bad tendency could have been applied prior to the distribution of both documents, which if analyzed by outside sources involved in the images, could have had different results, perhaps not so devastating as to what has occurred.
In terms of the Miller test, which determines whether a work is obscene, I would feel comfortable upholding it, as I believe it is a fair representation of works being judged. The Miller test is fair because it is not limited to one subjective manner, but rather in order to be labeled obscene must be met by 3 different standards that can be argued comprehensively if in question, by both the speaker and the government. Something I struggled with the most was the different levels of scrutiny. At first I found them confusing in their application and the result that would favor a private citizen or government interests. Yet, I also felt that minimal, intermediate and strict levels of scrutiny were levels I could manipulate to my favor in order to support my opinions, yet this manipulation was sometimes unrealistic in projected outcomes or judgments by the government. My intention was not to stay consistent in my choice of philosophies or doctrines, but to let myself be influenced by arguments presented for and against the suppression of speech. At times, this allowed me to be selfish and stay biased by siding with an issue and finding philosophical and doctrinal support. I also relied on research many times. I am inclined to believe in something that provides strong statistical reports, so citing such reports in my posts and responses allowed my arguments to support my claims with academic research.
Monday, March 15, 2010
Sunday, March 14, 2010
Animal Rights
As I began the readings for this weeks discussion of unprotected speech in terms of the dynamics involving the criminalization of images depicting animal cruelty I was deeply disturbed. As a loving pet owner of many years, I quickly decided that in order to create effective change, I would have to strike down the law that Congress passed in 1999 in its attempt to protect pets via images of cruelty, and create a new law that would include all the provision of the 1999 law, but would also criminalize the possession and non-commercial distribution of imagery that lacks positive relationships with our nations pets.
I had never before heard about or seen crush videos so perhaps this was an indicator that the1999 law congress passed had created a positive impact in the lack of distribution and knowledge of such videos depicting animal cruelty. Yet, the lack of consequences and criminalization for those who watch and distribute these videos, at times with no intentions of generating commercial value should change. The current Congressional law does not criminalize the possession of images depicting animal cruelty or non-commercial distribution, and this is deeply problematic.
It is quite perplexing to understand why it was that Congress did not make all viewing and distribution of animal torture illegal when it was closely modeled after child pornography laws. This is because prior to 1999, in the case of New York v. Ferber of 1982, it was deemed illegal to create, possess or distribute child pornographic media. Yet, currently in accordance to the ruling by the Third Circuit for the U.S. Court of Appeals, the decision to protect the defendant Robert Stevens was upheld by refusing to accept the analogy of child pornography (New York v. Ferber) in which the government was found to have a compelling interest in protecting children from exploitation. The analogy to Osborne v. Ohio in which the government was found to have a compelling interest not only in protecting children but also in suppressing the commercial demand for sexual images of children was also rejected. Thus, the current decision by the U.S. Court of Appeals opposes my plea to criminalize those who have animal cruelty media in possession and who distribute them willingly without monetary gain. Yet, my plea could become a reality if the Supreme Court decides to insist that a new law be drafted, where in addition to current provisions of the 1999 law, depictions and non-commercial distribution of animal harm would be treated in the same way as depictions and non-commercial distribution of sexual conduct by children.
I have mentioned that such acts of animal manipulation and cruelty is deeply disturbing to me and that the passing of the 1999 Law of Congress is a start to develop a more holistic measure to protect animal rights. Depictions and non-commercial distribution of animal cruelty should be banned under the harm theory of bad tendency. Depictions of animal cruelty are themselves evidence of actual harm, yet extension this harm theory provides reason to believe that the screening and distribution of animal cruelty media can lead to additional positional harm to animals and humans alike, yet the government can substantially decrease or put an end to all of the suffering. Estimates are that there are 75 million dogs and 90 million cats living in households in the United States. These pets are companions and family members. Evidence of this is apparent in 1997 Boston Northeastern University study that found 70% of all animal abusers had committed at least one other crime and that 40% had committed violent crimes against humans. Studies also found that a history of animal abuse was found in 25% of male criminals, 30% of convicted child molesters, 36% of domestic cases and 46% of homicide cases. Additionally, 30% of convicted child molesters and 48% of convicted rapists admitted to animal cruelty in their childhood. If media of animal cruelty is not criminalized, it creates easier access to young children via the Internet. Such cruel acts can easily be repeated by media examples, and justified among our youth because they were accessible online legally. This is detrimental to our society, because it creates a cycle of continued abuse for both animals and humans alike. In terms of the overbreath issue, which argues that the law as written may encompass too much speech that should remain protected and places an undue burden on speakers to show that their protected speech should not be punished, I would place strict measures in international depictions of animal cruelty brought to the United States. Speakers know the laws of the nation, and should not seek a loophole that would allow them to show and distribute images like dog fighting, which are legal in Japan inside the United States. In terms of the burden of speakers, legal in season hunting in our nation, would not be persecuted, even if depicted and distributed. This would not be against the law, yet close regulations of this should be allowed, especially if videos are circulated in great amounts and commercial values are placed on them.
The 3rd circuit judges dissenting on the case of United States v. Stevens, U.S. 3rd Circuit Court of Appeals provide support for my previous statement in regards to the analogy of child pornography and depictions of animal cruelty. They discuss the advertising and selling of child pornography as economic motives for the production of child pornography. The value they say, of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest. They cite four parts that detail how the depictions of animal cruelty implicate these same interests. The first part calls attention to government interest in preventing animal abuse, just like protecting the interests of minors. The second part details the unprotected form of speech in child pornography because of the lasting record of child abuse and the obstacles of ensuring enforcements in the “low profile clandestine industry. They discuss the long-term abuse that animals suffer – such as dogs’ depicting in dog fighting media. Also, crush videos not only detail the abuse of animal, but also the end of an animal’s life. The third part deals with the advertising and distribution of child pornography in the same way that images of animal cruelty are. In the final fourth part, the dissenting justices state that child pornography, like depictions of animal abuse are not considered to be an important or necessary part of scientific, literary or educations works, and in the off-chance that such was necessary, they could simply be simulated. Therefore they say that there is simply no potential that the present statue will reach any work that plans an important role in the world of ideas.
In addition, the dissenting judges in this case concerning defendant Stevens cite a past case, Chaplinsky vs. New Hampshire relevant to this discussion. In Chaplinsky, the Supreme Court defined protections regarding free speech and first amendment rights. The speech in question regarded the prevention and punishment of words labeled lewd and obscene, and insulting or “fighting,” words. These words were argued to inflict injury or tend to incite and immediate breach of peace. Such speech is said to have no significant impact in ideas and of low social value in the search for truth. Nevertheless the dissenting judges believe that Chaplinsky is of extreme importance to the Stevens case. They believe that the expansiveness of the particular exceptions at issues does not detract from the integrity of a constitution principle. This principle states that certain speech may be categorically unprotected under the first amendment – like images of animal cruelty. The judges also state that for speech to be unprotected, at a bare minimum, its value must be plainly outweighed by the Government’s asserted interest. They believe the speech in the Stevens case regarding images of animal cruelty does indeed share these features and should be unprotected under the first amendment.
In reference to my application of the harm theory of bad tendency discussed above, and in comparison to the imminent incitement approach, I would still apply images of animal abuse under the harm theory of bad tendency. This is because linking action to images of animal abuse would be more difficult under the incitement test under Brandenburg. This test states that, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Therefore, this test ensures that all viewing of animal abuse will incite criminal activity in realms of animal cruelty, yet it has been cited that the viewing of images regarding animal cruelty has different audiences. While it is true that some audiences tune in to media regarding animal cruelty to repeat the abuse, some audiences only tune in for sexual gratification and others for commercial gain.
I believe the philosophy of Zechariah Chafee to be applicable to the issues of animal cruelty. Chafee believed that speech should be divided into worthwhile and worthless categories. According to Chafee worthwhile speech about government matter received almost absolute protection while worthless speech about private concerns received far less protection. Chafee once said, “The great interest in free speech should be sacrificed only when the interest in public safety is really impaired.” In accordance to the statistics outlined below, the child cruelty to animals and cycle of violence to both animals and human is indeed a public safety interest, and the government should therefore apply intermediate scrutiny. The 1999 law of Congress should be challenged to include the criminalization of possession of animal cruelty media as well as the distribution of such media without any interest in monetary gain.
I had never before heard about or seen crush videos so perhaps this was an indicator that the1999 law congress passed had created a positive impact in the lack of distribution and knowledge of such videos depicting animal cruelty. Yet, the lack of consequences and criminalization for those who watch and distribute these videos, at times with no intentions of generating commercial value should change. The current Congressional law does not criminalize the possession of images depicting animal cruelty or non-commercial distribution, and this is deeply problematic.
It is quite perplexing to understand why it was that Congress did not make all viewing and distribution of animal torture illegal when it was closely modeled after child pornography laws. This is because prior to 1999, in the case of New York v. Ferber of 1982, it was deemed illegal to create, possess or distribute child pornographic media. Yet, currently in accordance to the ruling by the Third Circuit for the U.S. Court of Appeals, the decision to protect the defendant Robert Stevens was upheld by refusing to accept the analogy of child pornography (New York v. Ferber) in which the government was found to have a compelling interest in protecting children from exploitation. The analogy to Osborne v. Ohio in which the government was found to have a compelling interest not only in protecting children but also in suppressing the commercial demand for sexual images of children was also rejected. Thus, the current decision by the U.S. Court of Appeals opposes my plea to criminalize those who have animal cruelty media in possession and who distribute them willingly without monetary gain. Yet, my plea could become a reality if the Supreme Court decides to insist that a new law be drafted, where in addition to current provisions of the 1999 law, depictions and non-commercial distribution of animal harm would be treated in the same way as depictions and non-commercial distribution of sexual conduct by children.
I have mentioned that such acts of animal manipulation and cruelty is deeply disturbing to me and that the passing of the 1999 Law of Congress is a start to develop a more holistic measure to protect animal rights. Depictions and non-commercial distribution of animal cruelty should be banned under the harm theory of bad tendency. Depictions of animal cruelty are themselves evidence of actual harm, yet extension this harm theory provides reason to believe that the screening and distribution of animal cruelty media can lead to additional positional harm to animals and humans alike, yet the government can substantially decrease or put an end to all of the suffering. Estimates are that there are 75 million dogs and 90 million cats living in households in the United States. These pets are companions and family members. Evidence of this is apparent in 1997 Boston Northeastern University study that found 70% of all animal abusers had committed at least one other crime and that 40% had committed violent crimes against humans. Studies also found that a history of animal abuse was found in 25% of male criminals, 30% of convicted child molesters, 36% of domestic cases and 46% of homicide cases. Additionally, 30% of convicted child molesters and 48% of convicted rapists admitted to animal cruelty in their childhood. If media of animal cruelty is not criminalized, it creates easier access to young children via the Internet. Such cruel acts can easily be repeated by media examples, and justified among our youth because they were accessible online legally. This is detrimental to our society, because it creates a cycle of continued abuse for both animals and humans alike. In terms of the overbreath issue, which argues that the law as written may encompass too much speech that should remain protected and places an undue burden on speakers to show that their protected speech should not be punished, I would place strict measures in international depictions of animal cruelty brought to the United States. Speakers know the laws of the nation, and should not seek a loophole that would allow them to show and distribute images like dog fighting, which are legal in Japan inside the United States. In terms of the burden of speakers, legal in season hunting in our nation, would not be persecuted, even if depicted and distributed. This would not be against the law, yet close regulations of this should be allowed, especially if videos are circulated in great amounts and commercial values are placed on them.
The 3rd circuit judges dissenting on the case of United States v. Stevens, U.S. 3rd Circuit Court of Appeals provide support for my previous statement in regards to the analogy of child pornography and depictions of animal cruelty. They discuss the advertising and selling of child pornography as economic motives for the production of child pornography. The value they say, of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest. They cite four parts that detail how the depictions of animal cruelty implicate these same interests. The first part calls attention to government interest in preventing animal abuse, just like protecting the interests of minors. The second part details the unprotected form of speech in child pornography because of the lasting record of child abuse and the obstacles of ensuring enforcements in the “low profile clandestine industry. They discuss the long-term abuse that animals suffer – such as dogs’ depicting in dog fighting media. Also, crush videos not only detail the abuse of animal, but also the end of an animal’s life. The third part deals with the advertising and distribution of child pornography in the same way that images of animal cruelty are. In the final fourth part, the dissenting justices state that child pornography, like depictions of animal abuse are not considered to be an important or necessary part of scientific, literary or educations works, and in the off-chance that such was necessary, they could simply be simulated. Therefore they say that there is simply no potential that the present statue will reach any work that plans an important role in the world of ideas.
In addition, the dissenting judges in this case concerning defendant Stevens cite a past case, Chaplinsky vs. New Hampshire relevant to this discussion. In Chaplinsky, the Supreme Court defined protections regarding free speech and first amendment rights. The speech in question regarded the prevention and punishment of words labeled lewd and obscene, and insulting or “fighting,” words. These words were argued to inflict injury or tend to incite and immediate breach of peace. Such speech is said to have no significant impact in ideas and of low social value in the search for truth. Nevertheless the dissenting judges believe that Chaplinsky is of extreme importance to the Stevens case. They believe that the expansiveness of the particular exceptions at issues does not detract from the integrity of a constitution principle. This principle states that certain speech may be categorically unprotected under the first amendment – like images of animal cruelty. The judges also state that for speech to be unprotected, at a bare minimum, its value must be plainly outweighed by the Government’s asserted interest. They believe the speech in the Stevens case regarding images of animal cruelty does indeed share these features and should be unprotected under the first amendment.
In reference to my application of the harm theory of bad tendency discussed above, and in comparison to the imminent incitement approach, I would still apply images of animal abuse under the harm theory of bad tendency. This is because linking action to images of animal abuse would be more difficult under the incitement test under Brandenburg. This test states that, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Therefore, this test ensures that all viewing of animal abuse will incite criminal activity in realms of animal cruelty, yet it has been cited that the viewing of images regarding animal cruelty has different audiences. While it is true that some audiences tune in to media regarding animal cruelty to repeat the abuse, some audiences only tune in for sexual gratification and others for commercial gain.
I believe the philosophy of Zechariah Chafee to be applicable to the issues of animal cruelty. Chafee believed that speech should be divided into worthwhile and worthless categories. According to Chafee worthwhile speech about government matter received almost absolute protection while worthless speech about private concerns received far less protection. Chafee once said, “The great interest in free speech should be sacrificed only when the interest in public safety is really impaired.” In accordance to the statistics outlined below, the child cruelty to animals and cycle of violence to both animals and human is indeed a public safety interest, and the government should therefore apply intermediate scrutiny. The 1999 law of Congress should be challenged to include the criminalization of possession of animal cruelty media as well as the distribution of such media without any interest in monetary gain.
Monday, March 1, 2010
Overuling the 2000 obscenity case that took place in Dallas, Texas regarding a resident, Jesus Castillo, employee of Keith’s Comics.
The Texas State Court of Appeals should have overturned the 2000 obscenity case that took place in Dallas, Texas regarding a resident, Jesus Castillo, employee of Keith’s Comics. This court case was not overturned, and I believe this conviction is wrong on the basis of the evidence provided in his defense as well as infringement of his human rights. I will defend the evidence that should have overturned his initial conviction with support from philosopher Edwin Baker. I will also scrutinize the grounds to which the Texas Court of Appeals applied the obscenity ruling to Mr. Castillo by criminalizing him. The definition of obscenity, will be carefully analyzed, yet I am adamant that Mr. Castillo case is deserving of a mistrial and an outright proclamation of injustice.
To begin with, Mr. Castillo was among one of various employees in the city who sold print material that contained sexually explicit materials. This is a fact that was presented by a licensed private investigator by the name of Michael Christopher. It could be argued that Mr. Castillo was targeted among many performing similar work duties in the city on the basis of sex, race or national origin. While this idea is not presented in court documents, it is important to note that Mr. Castillo was among many employees carrying out the same work, yet he is the only one being criminalized for this work. The court should have addressed this, and thus is problematic that it did not. Additionally, his first and last name connotes those of an ethnic Latino minority – one that has a history of being oppressed by displacements, racism and criminalization, especially in a border state like Texas. The history of our immigration has a very grim past, especially in regards to xenophobia and the criminalization of the marginalized immigrant or minority. During the 1930’s, up to 2 million people of Mexican ancestry were relocated to Mexico, even though as many as 1.2 million were born in the United States. Additionally, in the decade of Mr. Castillo’s sentencing, the Pew Research Center found that Latinos accounted for 40% of all people sentenced to federal crimes, even though they made up only 13% of the U.S. adult population. In addition, pertaining to this same decade, The Sentencing Project released a study that stated Texas had one of the highest incarceration rates, exceeding the national rate in regards to the incarcerated Hispanic population. Also, it is important to note that as an employee, Mr. Castillo was only performing and abiding by his occupational duties. Mr. Castillo did not own fully or partially Keith’s Comics – yet he was being held responsible as an owner would be for the idea behind the foundation of this retail store and the authored distribution of all comics.
To continue, The Supreme Court ruled in the 1957 case of Butler v. Michigan that the law cannot “reduce the adult population…to reading only what is fit for children.” This Michigan law made it a misdemeanor to sell or make available to the general reading public any book containing language "tending to the corruption of the morals of youth." This law was enacted due to a critical book published in 1954, Seduction of the Innocent, that claimed a direct link between juvenile delinquency and comics. Yet, the dynamics of comics in our country that depict “G” rated to “R” rated or even “XXX” rated should have the same protections as movies and music do. Movies are restricted to audiences in years of age at the theater and at the time of rent. Music does the same, as minors are not allowed to purchase explicit material. The comics that were being sold in Mr. Castillo’s place of employment also had similar restrictions at the moment of view and purchase in terms of age restrictions. Mr. Castillo did not break the law by selling these comics to a minor or allowing a minor to view these comics. In contrast, Mr. Castillo abided by the law when he sold an adult comic to a consenting adult who obtained this material from the adult section. Scenes like these are common around the nation as an expert on these matters – Scott McCloud stated in Mr. Castillo’s defense. Mr. McCloud is an award-winning author and comic book artist. He testified that sixty-eight percent of comic book readers were over the age of eighteen. The economic power that those over eighteen have in comparison to those less than eighteen years of age supports the fact that such purchasing scenes are constantly repeated around the nation. Therefore, there should have been no targeted criminalization on Mr. Castillo’s behalf, when he was not and is not the only retail adult comic book employee in the surrounding city of Dallas or around the nation.
It is important to note the lack of respect and honor for academia and professional sources present in Mr. Castillo’s defense. The complete ignorance of expertise presented disregards a fair and just trial for Mr. Castillo. A fair and just trial goes against a respected, old Greek myth called the Areopagitica story. This story encouraged all discourse from both sides. Athena – what could now be considered a judge, was challenged in her beliefs and most importantly was an active listener. No one was struck down or much less punished for what was said. Athena made logical decisions based on fairness. Yet, in contrast to this Areopagitica story, court documents in Mr. Castillo’s case show that the appellate justices abused their judicial power by continually overruling points of error that Mr. Castillo fairly presented.
The criminalization applied for the selling of a comic book because it is deemed obscene in a legal retail store that has sold many of the same kind in previous occasions is unjust. Mr. Castillo was charged with a misdemeanor obscenity ruling for selling a sexually explicit comic book to an undercover Dallas police officer named Reynerson. Mr. Castillo argued that the evidence was legally and factually insufficient to support his conviction and that the comic book was not constitutionally obscene. The court said that when Reynerson took the comic book to the counter and handed it to the appellant with the front cover showing, and left the store having paid for it, is evidence enough that Mr. Castillo knew of the obscene content as he placed the comic book in a bag himself and handed it to Reynerson. Reynerson said the comic book depicted genitals in a state of arousal and contained acts of sodomy, masturbation, excretory functions, sadism, and masochism. Reynerson described one scene in which a demon, transformed into a tree, penetrated a female with its roots. After reviewing the book and comparing it to other materials, he concluded the book was obscene. Reynerson did not know the book was the second in a four-part series. However, he purchased the book individually and did not remember seeing any of the other volumes. According to Reynerson, his level of scrutiny in defining obscenity was enough judgment to label the comic book obscene, and thus allow the state of Texas to rest its case on his testimony.
It is appalling to fathom the thought of a Texas State Court of appeals accepting the testimony of a police officer’s level of scrutiny in the determination of the criminalization of obscene material. Yet, this did indeed occur in Mr. Castillo’s case. The Court cited the Tex. Pen. Code Ann. § 43.23 (c)(1) (Vernon 1994) as support for the obscenity misdemeanor against Mr. Castillo. This code says that if a person commits an offense if, knowing its content and character, he promotes or posses with intent to promote any obscene material or obscene device then he is in violation of this code. Obscene is then defined as material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genitals; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.
Tex. Pen. Code Ann. § 43.21(a)(1) (Vernon 1994).
The court then addressed Mr. Castillo’s first and third points of error, where he contended that the evidence was legally and factually insufficient to establish beyond a reasonable doubt his knowledge of the content and character of the book. Additionally, Mr. Castillo contended that the evidence was factually insufficient to establish the book as patently offensive, appealed to the prurient interest, and lacked serious artistic and literary value.
In the second point of error, Mr. Castillo criticized the “paucity of proof” presented by the State on knowledge and argued that the evidence was factually insufficient when considering proof offered to negate scienter. In particular, Mr. Castillo asked the Court to review the photographs of the comic book store, which illustrate the “predominantly non-adult nature of the store and its inventory.” Mr. Castillo argued that simply because the book was inappropriate for children it was “not dispositive of a sexually obscene character” because Keith's offered comic books in the same section with “themes of violence with little or no sexual content” and for which a warning would be appropriate.
The jury was in possession of the comic book. The fact that the two defense experts did not find the material to be obscene did not prevent the jury from deciding it (1) lacked serious literary, artistic, scientific, or political value or (2) would be offensive to the average member of the community. See Beier v. State, 681 S.W.2d 124, 127 (Tex. App.-Houston [14th Dist.] 1984), rev'd on other grounds, 687 S.W.2d 2 (Tex. Crim. App. 1985) These decision of the court turned to be extremely detrimental to Mr. Castillo’s case, as the Court completely disregarded his claims, and upheld the criminalization of the obscenity standard.
I would like to present Justice Brennan’s dissent in the Miller vs. California (1973) case as my standard for supporting Mr. Castillo. Justice Brennan stated that offensive material was protected as long as it did not fall into the hands of a child or was imposed on a captive audience. Mr. Castillo abided by Justice Brenna’s opinion as the undercover officer, Reynerson was neither a child as he was over the age of 18 and the selling of one comic book to Reynerson is not applicable to being imposed “on a captive audience.” Justice Brennan’s level of scrutiny indicated that the suppression of unprotected obscene material was permissible to avoid exposure to unconsenting adults and to juveniles, neither of which is applicable to Mr. Castillo’s case.
In terms of academic support that is highly respected and honored unlike the appellate justices in Mr. Castillo’s case, I present philosopher Edwin Baker to support Mr. Castillo’s rightful acts in his place of employment. Baker believed that freedom of speech was not primarily a means to a marketplace of ideas, or truth, or democracy. Instead, he urged the view that liberty of speech was integral to individual self-fulfillment and so needs to be treated as a universal right of human dignity. Freedom of speech could be applied to Mr. Castillo’s decision to accept the terms of employment, follow them lawfully and when persecuted, defend himself as a means of self-fulfillment that Baker describes as a universal right of human dignity.
To begin with, Mr. Castillo was among one of various employees in the city who sold print material that contained sexually explicit materials. This is a fact that was presented by a licensed private investigator by the name of Michael Christopher. It could be argued that Mr. Castillo was targeted among many performing similar work duties in the city on the basis of sex, race or national origin. While this idea is not presented in court documents, it is important to note that Mr. Castillo was among many employees carrying out the same work, yet he is the only one being criminalized for this work. The court should have addressed this, and thus is problematic that it did not. Additionally, his first and last name connotes those of an ethnic Latino minority – one that has a history of being oppressed by displacements, racism and criminalization, especially in a border state like Texas. The history of our immigration has a very grim past, especially in regards to xenophobia and the criminalization of the marginalized immigrant or minority. During the 1930’s, up to 2 million people of Mexican ancestry were relocated to Mexico, even though as many as 1.2 million were born in the United States. Additionally, in the decade of Mr. Castillo’s sentencing, the Pew Research Center found that Latinos accounted for 40% of all people sentenced to federal crimes, even though they made up only 13% of the U.S. adult population. In addition, pertaining to this same decade, The Sentencing Project released a study that stated Texas had one of the highest incarceration rates, exceeding the national rate in regards to the incarcerated Hispanic population. Also, it is important to note that as an employee, Mr. Castillo was only performing and abiding by his occupational duties. Mr. Castillo did not own fully or partially Keith’s Comics – yet he was being held responsible as an owner would be for the idea behind the foundation of this retail store and the authored distribution of all comics.
To continue, The Supreme Court ruled in the 1957 case of Butler v. Michigan that the law cannot “reduce the adult population…to reading only what is fit for children.” This Michigan law made it a misdemeanor to sell or make available to the general reading public any book containing language "tending to the corruption of the morals of youth." This law was enacted due to a critical book published in 1954, Seduction of the Innocent, that claimed a direct link between juvenile delinquency and comics. Yet, the dynamics of comics in our country that depict “G” rated to “R” rated or even “XXX” rated should have the same protections as movies and music do. Movies are restricted to audiences in years of age at the theater and at the time of rent. Music does the same, as minors are not allowed to purchase explicit material. The comics that were being sold in Mr. Castillo’s place of employment also had similar restrictions at the moment of view and purchase in terms of age restrictions. Mr. Castillo did not break the law by selling these comics to a minor or allowing a minor to view these comics. In contrast, Mr. Castillo abided by the law when he sold an adult comic to a consenting adult who obtained this material from the adult section. Scenes like these are common around the nation as an expert on these matters – Scott McCloud stated in Mr. Castillo’s defense. Mr. McCloud is an award-winning author and comic book artist. He testified that sixty-eight percent of comic book readers were over the age of eighteen. The economic power that those over eighteen have in comparison to those less than eighteen years of age supports the fact that such purchasing scenes are constantly repeated around the nation. Therefore, there should have been no targeted criminalization on Mr. Castillo’s behalf, when he was not and is not the only retail adult comic book employee in the surrounding city of Dallas or around the nation.
It is important to note the lack of respect and honor for academia and professional sources present in Mr. Castillo’s defense. The complete ignorance of expertise presented disregards a fair and just trial for Mr. Castillo. A fair and just trial goes against a respected, old Greek myth called the Areopagitica story. This story encouraged all discourse from both sides. Athena – what could now be considered a judge, was challenged in her beliefs and most importantly was an active listener. No one was struck down or much less punished for what was said. Athena made logical decisions based on fairness. Yet, in contrast to this Areopagitica story, court documents in Mr. Castillo’s case show that the appellate justices abused their judicial power by continually overruling points of error that Mr. Castillo fairly presented.
The criminalization applied for the selling of a comic book because it is deemed obscene in a legal retail store that has sold many of the same kind in previous occasions is unjust. Mr. Castillo was charged with a misdemeanor obscenity ruling for selling a sexually explicit comic book to an undercover Dallas police officer named Reynerson. Mr. Castillo argued that the evidence was legally and factually insufficient to support his conviction and that the comic book was not constitutionally obscene. The court said that when Reynerson took the comic book to the counter and handed it to the appellant with the front cover showing, and left the store having paid for it, is evidence enough that Mr. Castillo knew of the obscene content as he placed the comic book in a bag himself and handed it to Reynerson. Reynerson said the comic book depicted genitals in a state of arousal and contained acts of sodomy, masturbation, excretory functions, sadism, and masochism. Reynerson described one scene in which a demon, transformed into a tree, penetrated a female with its roots. After reviewing the book and comparing it to other materials, he concluded the book was obscene. Reynerson did not know the book was the second in a four-part series. However, he purchased the book individually and did not remember seeing any of the other volumes. According to Reynerson, his level of scrutiny in defining obscenity was enough judgment to label the comic book obscene, and thus allow the state of Texas to rest its case on his testimony.
It is appalling to fathom the thought of a Texas State Court of appeals accepting the testimony of a police officer’s level of scrutiny in the determination of the criminalization of obscene material. Yet, this did indeed occur in Mr. Castillo’s case. The Court cited the Tex. Pen. Code Ann. § 43.23 (c)(1) (Vernon 1994) as support for the obscenity misdemeanor against Mr. Castillo. This code says that if a person commits an offense if, knowing its content and character, he promotes or posses with intent to promote any obscene material or obscene device then he is in violation of this code. Obscene is then defined as material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genitals; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.
Tex. Pen. Code Ann. § 43.21(a)(1) (Vernon 1994).
The court then addressed Mr. Castillo’s first and third points of error, where he contended that the evidence was legally and factually insufficient to establish beyond a reasonable doubt his knowledge of the content and character of the book. Additionally, Mr. Castillo contended that the evidence was factually insufficient to establish the book as patently offensive, appealed to the prurient interest, and lacked serious artistic and literary value.
In the second point of error, Mr. Castillo criticized the “paucity of proof” presented by the State on knowledge and argued that the evidence was factually insufficient when considering proof offered to negate scienter. In particular, Mr. Castillo asked the Court to review the photographs of the comic book store, which illustrate the “predominantly non-adult nature of the store and its inventory.” Mr. Castillo argued that simply because the book was inappropriate for children it was “not dispositive of a sexually obscene character” because Keith's offered comic books in the same section with “themes of violence with little or no sexual content” and for which a warning would be appropriate.
The jury was in possession of the comic book. The fact that the two defense experts did not find the material to be obscene did not prevent the jury from deciding it (1) lacked serious literary, artistic, scientific, or political value or (2) would be offensive to the average member of the community. See Beier v. State, 681 S.W.2d 124, 127 (Tex. App.-Houston [14th Dist.] 1984), rev'd on other grounds, 687 S.W.2d 2 (Tex. Crim. App. 1985) These decision of the court turned to be extremely detrimental to Mr. Castillo’s case, as the Court completely disregarded his claims, and upheld the criminalization of the obscenity standard.
I would like to present Justice Brennan’s dissent in the Miller vs. California (1973) case as my standard for supporting Mr. Castillo. Justice Brennan stated that offensive material was protected as long as it did not fall into the hands of a child or was imposed on a captive audience. Mr. Castillo abided by Justice Brenna’s opinion as the undercover officer, Reynerson was neither a child as he was over the age of 18 and the selling of one comic book to Reynerson is not applicable to being imposed “on a captive audience.” Justice Brennan’s level of scrutiny indicated that the suppression of unprotected obscene material was permissible to avoid exposure to unconsenting adults and to juveniles, neither of which is applicable to Mr. Castillo’s case.
In terms of academic support that is highly respected and honored unlike the appellate justices in Mr. Castillo’s case, I present philosopher Edwin Baker to support Mr. Castillo’s rightful acts in his place of employment. Baker believed that freedom of speech was not primarily a means to a marketplace of ideas, or truth, or democracy. Instead, he urged the view that liberty of speech was integral to individual self-fulfillment and so needs to be treated as a universal right of human dignity. Freedom of speech could be applied to Mr. Castillo’s decision to accept the terms of employment, follow them lawfully and when persecuted, defend himself as a means of self-fulfillment that Baker describes as a universal right of human dignity.
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