In the United States, abusing animals with situations like dog fighting is illegal. As an expression, animal cruelty is controlled by a law made in 1999. Under the law, it is a crime to create, possess or sell animal cruelty material. For example, Robert Stevens was sentenced for selling videos of dog fighting which was filmed in Japan where dog fighting is legal. However, it was found that the government has no compelling interest to suppress animal cruelty expression, and the analogy to a child pornography case was rejected. Later, The U.S. justice department appealed that the issue of animal cruelty should be treated like the issue of child pornography in that animals should be protected in the same manner as the Ferber and Osborn cases.
Although the U.S. law treats these two very differently from each other, I think animal cruelty shares some elements with child pornography. For example, the production of animal cruelty material is directly connected to some degree of animal abuse just as the production of child pornography usually harms children both physically and psychologically. Also, both animals and children are more vulnerable than adults. In addition, animal cruelty could be a kind of porn as some people feel sexual aroused by watching a crushing video, which is a video of killing an animal by a woman’s high-heel shoes. However, there are two major differences between animal cruelty and child pornography. The U.S law allows the production and distribution of animal cruelty materials that have “scientific, journalistic, religious or political, historical and artistic” value. In addition, the law only restricts the market of animal cruelty instead of distribution itself. Although the law offers a kind of SLAPS value for animal cruelty materials, after 1999, which is the year the government imposed the law, the market of animal cruelty crushing videos with about 2000 videos disappeared although some of them just changed their platform to online. These expressions are not considered illegal as long as they do not “sell” these images/films because the law only bans animal cruelty material for selling.
Also, the animal cruelty SLAPS values is overly broad and too vague, so it may be easy for these creators to claim artistic or scientific value for their expressions. For example, Robert J. Stevens who was prosecuted for selling dog fighting videos claimed that there was an educational value to the animal cruelty materials that he sold. Although he was sentenced to 37 months in prison, the current law may give ways for criminals to get away with the law. It can be said that the government is not accomplishing their interests of “regulating the treatment of animals” and “discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings” because the law only restricts commercial materials instead of all kinds of distribution although animal cruelty expressions are in everywhere.(The House Committee report.
I believe that expressions should be protected even though sometimes they may capture an illegal activity such as doing drugs or stealing. However, the law for animal cruelty should be treated with strict scrutiny and defined specifically because like child pornography, the production of images of animal cruelty harms vulnerable animals; also, it may be harmful for viewers. The current law may be overly broad and too vague to protect animals from being abused. For example, I think that the law should restrict all distribution of animal cruelty material instead of just commercial materials in order to restrict online animal cruelty materials.
However, exceptions should be allowed like the case of Sally Mann for child pornography. For example, foreign movies are likely to suffer if the law does not allow artistic movies. In Spain where bullfighting is legal or Japan where dog fighting is not criminalized, artistic materials such as movies may contain some scenes with bullfighting or dog fighting. These movies would have to be banned in the U.S. because of these scenes. Therefore, I believe that the law needs some flexibility. For this reason, I think the content should be considered as a whole. In addition, suppressing all cruelty materials would create another potential problem. There are many animal cruelty materials in the U.S. that may have historical or scientific values. Also, there are political movements to protect animals from animal abuse. Therefore, I employ the philosophy of Chafee, so these socially worthwhile should be protected. However, these social worthless expressions need to be suppressed like the case of Chaplinsky v. New Hampshire.
In terms of a burden of proof, I think that the burden of proof can be on the speakers. Although I did not really like the libel law of Canada, I think animal cruelty can be one of the issues in which the government should have strong control because the government has a compelling interest in suppressing the animal cruelty as well. The burden of proof is also on the speaker in obscenity and child pornography cases. Because animal cruelty also shares some elements with obscenity as well as child pornography, it may be reasonable to put the burden of proof on the speaker. According to The 3rd circuit decision, the defendants “… often were able to successfully assert as a defense that the state could not prove its jurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the State statute of limitations.” Because of the nature of animal cruelty, it can be very hard for prosecutors to prove that animal cruelty occurred. Also, in the Miller v. California Case, the court also argues, “a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" — a burden virtually impossible to discharge under our criminal standards of proof.” As these statements show, this kind of issue is so hard to put as a burden on the prosecutor, and by putting the burden on the prosecutors, it would be too difficult to punish these criminals. Because I think the government has a compelling interest towards the issue, I think it is acceptable to put the burden on the speaker because the U.S.'s general approach of "innocent until proven guilty" may allow many criminals get away if the burden is on the prosecutor in this issue.
Monday, March 15, 2010
Synthesis
According to The Universal Declaration of Human Rights, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” General speaking, I believe that freedom of speech should be recognized and protected anywhere in the world. My general perception of freedom of speech has not changed even after what I learned in this class. However, this class helped me to recognize that there are many different elements playing different roles in freedom of speech such as philosophy, context, people, laws and culture. One thing I learned in the class is that there is no absolute freedom of speech that everyone can express anything they want without interfering with each other. For example, people are not free to criticize someone in public because it suppresses the rights of the person. It can be libel. However, the U.S. and England have a very different approach to a libel case, and Canada recently created a different approach based on their culture and perception of freedom of speech.
I believe that freedom of speech stands for individual self-fulfillment; also, there is a need to adapt to new mediums that are consistently changing. Therefore, my favorite philosopher, as far as I know, is Thomas Emerson because he values the overall importance of protecting one's freedom of speech. Emerson argues “freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses (438).” By this statement, he protects not only traditional mediums, but he also protects new mediums such as music, art and word. Also, his expression-action theory broadly protects expressions very well; at the same time, it prohibits undesirable actions. However, his philosophy can be very hard to apply to specific cases because it is hard to draw a line between an expression and an action sometimes. In the book, there is an example of dealing with a sedition case with his philosophy. In the example, burning a draft card and burning a flag to protest are classified as an expression. However, the physical obstruction of doorways is classified as an action. As the book example shows, expressions and actions are sometimes hard to distinguish. bI think a philosopher like Chafee can be more applicable to many cases because he puts an emphasis on the social value of the material and strongly protecting these socially valuable (worthwhile) materials and gives far less protection on these “worthless” materials. However, I do not necessarily agree with his idea that some expressions are “worthless.” Although it could be easier to apply his philosophy especially for obscenity or animal cruelty cases; I still think that expressions are supposed to be protected as long as they do not harm people.
For the same reason, I like the Harm principal. Although the Offense principal could be applied to more cases because the bar is set lower, and it also restricts offensive but not actually harmful expressions. For example, the Stanford Encyclopedia of Philosophy employs the case of pornography. That Harm principal punishes only when violence against these women are captured. However, the offense theory bans materials that are just “offensive” for many people. I think the offense theory sets the bar too low in that anything can be restricted because of the offensiveness, and it suppresses freedom of speech too greatly.
In addition, I think the burden of proof should be on the prosecutor in general. As we learned in class, libel cases in England are very hard to win for the speaker because the burden of proof is on the speaker. Because the speaker is the one to prove his/her own innocence, it is less likely to protect the freedom of speech of the person. Although the burden of proof on the speaker may be necessary in cases such as obscenity and animal cruelty because it is so hard for the prosecutors to prove, and accused people are likely to get away if the burden is on the prosecutors for that reason. Therefore, I think it is okay to put the burden on the speaker on this kind of issue as long as the government has a compelling reason. Although some restrictions need to be imposed in order to balance freedom of expression and rights of people, I still think that expressions should have maximum protection. Therefore, I choose Emerson, the offense theory and having the burden of proof on the prosecutor to maximize the protection while suppressing harmful actions. For example, in obscenity and child pornography, I believe that harmful actions that cause bodily harm t women and children should be suppressed; however, artistic or scientific expressions should not suffer from restrictions. But, I also think that the approach of law and philosophy should be flexible enough to achieve the needs of the specific issue. Therefore, other principals and philosophies are also valuable in society.
In conclusion, I believe that freedom of expression should be universally recognized; however, there are times that it needs to be limited in order to protect people from offenses. Because of importance of freedom of expression, I think restrictions are carefully limited, so only harmful expressions would be suppressed. On the other hand, I agree that there should be some flexibility, and choice of philosophy and doctrine approach depends on the issue because each philosopher and doctrine approach has a different area and level of protection on a different issue. Therefore, I did not use Emerson on every my posting.
I believe that freedom of speech stands for individual self-fulfillment; also, there is a need to adapt to new mediums that are consistently changing. Therefore, my favorite philosopher, as far as I know, is Thomas Emerson because he values the overall importance of protecting one's freedom of speech. Emerson argues “freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses (438).” By this statement, he protects not only traditional mediums, but he also protects new mediums such as music, art and word. Also, his expression-action theory broadly protects expressions very well; at the same time, it prohibits undesirable actions. However, his philosophy can be very hard to apply to specific cases because it is hard to draw a line between an expression and an action sometimes. In the book, there is an example of dealing with a sedition case with his philosophy. In the example, burning a draft card and burning a flag to protest are classified as an expression. However, the physical obstruction of doorways is classified as an action. As the book example shows, expressions and actions are sometimes hard to distinguish. bI think a philosopher like Chafee can be more applicable to many cases because he puts an emphasis on the social value of the material and strongly protecting these socially valuable (worthwhile) materials and gives far less protection on these “worthless” materials. However, I do not necessarily agree with his idea that some expressions are “worthless.” Although it could be easier to apply his philosophy especially for obscenity or animal cruelty cases; I still think that expressions are supposed to be protected as long as they do not harm people.
For the same reason, I like the Harm principal. Although the Offense principal could be applied to more cases because the bar is set lower, and it also restricts offensive but not actually harmful expressions. For example, the Stanford Encyclopedia of Philosophy employs the case of pornography. That Harm principal punishes only when violence against these women are captured. However, the offense theory bans materials that are just “offensive” for many people. I think the offense theory sets the bar too low in that anything can be restricted because of the offensiveness, and it suppresses freedom of speech too greatly.
In addition, I think the burden of proof should be on the prosecutor in general. As we learned in class, libel cases in England are very hard to win for the speaker because the burden of proof is on the speaker. Because the speaker is the one to prove his/her own innocence, it is less likely to protect the freedom of speech of the person. Although the burden of proof on the speaker may be necessary in cases such as obscenity and animal cruelty because it is so hard for the prosecutors to prove, and accused people are likely to get away if the burden is on the prosecutors for that reason. Therefore, I think it is okay to put the burden on the speaker on this kind of issue as long as the government has a compelling reason. Although some restrictions need to be imposed in order to balance freedom of expression and rights of people, I still think that expressions should have maximum protection. Therefore, I choose Emerson, the offense theory and having the burden of proof on the prosecutor to maximize the protection while suppressing harmful actions. For example, in obscenity and child pornography, I believe that harmful actions that cause bodily harm t women and children should be suppressed; however, artistic or scientific expressions should not suffer from restrictions. But, I also think that the approach of law and philosophy should be flexible enough to achieve the needs of the specific issue. Therefore, other principals and philosophies are also valuable in society.
In conclusion, I believe that freedom of expression should be universally recognized; however, there are times that it needs to be limited in order to protect people from offenses. Because of importance of freedom of expression, I think restrictions are carefully limited, so only harmful expressions would be suppressed. On the other hand, I agree that there should be some flexibility, and choice of philosophy and doctrine approach depends on the issue because each philosopher and doctrine approach has a different area and level of protection on a different issue. Therefore, I did not use Emerson on every my posting.
Monday, March 8, 2010
Case of Sally Mann
Child pornography is strictly prohibited under the U.S. law, and its legal rights are limited even compared to obscenity. For example, the material is not necessary considered as a whole, unlike pornography. Also, SLAP value does not apply to child pornography. Although protecting minors from harmful sexual materials and the production process, these laws may suppress freedom of expression of artists as well. Sally Mann, who is a professional and award winning photographer suffered from this child pornography issue. Her art work titled, “Immediate Family” had been accused of being “child pornography,” and it became a controversial issue in 1992. The photo book was created with pictures of her own children. In some of these pictures, her children are naked, and a few of the pictures were focused on their genital areas. The relatively recent cases of child pornography such as Osborne v. Ohio, in which the U.S. Supreme Court ruled the case of child pornography with rather vague definitions, and some of Mann’s pictures could fall into the category of child pornography under the definition of the case. However, professional artworks should not be suppressed under the first amendment.
In the Osborne case, the Ohio court defined nudity as a “lewd exhibition of nudity” or “graphic focus on the minor’s genitals.” Under these vague definitions of nudity, many artistic expressions may be suppressed, and Mann’s pictures are not immune to it. The picture of her son’s genital area could fall into the second of “graphic focus on the minor’s genitals” category under the Ohio definition. The picture is clearly focused on his genital area, and other parts of his body were barely captured. Although the expression itself is not especially obscene, the picture could be a form of child pornography under the definition used by Osborne case. However, if the material were an obscenity, it would not be a problem because the artistic value would be considered according to the Miller v. California case.
However, the art value of child pornography is often not considered. I think that such a broad definition of child pornography is likely to suppress artistic expressions. I believe that SLAPs value should be applied to child pornography as well, and the material should be taken as whole. In this way, Mann could reasonably argue the material is art. The example is “The Tin Drum”, in which is an award winning movie in Germany. The movie also has sexual scenes with a 11 year-old boy and an adult woman, and these scenes became a controversy in the U.S. Although the movie was once banned in Oklahoma City, its artistic value was eventually recognized. My point is that material with an exhibition of children or focus on their genital area may not be child pornography as whole. Also, in child pornography cases, the compelling government interests are including 1) Protecting actual minors from physical and psychological harm 2) disrupting the market of child porn. According to National Center of Missing Exploited Children, “It is important to realize that these images are crime scene photos – they are a permanent record of the abuse of a child. The lives of the children featured in these illegal images and videos are forever altered.” Therefore, artistic materials that do not fulfill these two categories (in other words, artistic materials do not involve any forms of child abuse) should be protected under the first amendment. For example, in Mann’s artwork, these children were not forced to contribute to her artwork and the material does not contribute to the child pornography market. I believe that the definition of child pornography should be narrowly considered, so it does not suppress artistic expressions. The courts could focus on how the material is created. For example, the court should restrict Mann’s picture if Mann forced her children to be in her artwork. Also, instead of simply restricting the material, the court could focus on restricting the pandering of the material in the child porn market in order to protect these children.
The Osborne case expanded the restrictions on child pornography further than the New York v. Ferber case in that there are two added conditions. The two conditions are that “the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein” or “the minor’s parents or guardians have consented in writing to such photographing or use of the minor.” If the artistic value of Mann’s work would be considered, her artwork would be protected. In this case, the pictures are taken for a proper reason (as art work) by a professional photographer (by the person having a proper interest). In addition, Mann is the parent of these three children, so it fulfills the second condition. Therefore, Mann’s expression should be protected. Also, in both the Ferber and Osborne case of child pornography, compelling state interests are mainly protecting actual minors or/and disrupting the market for child porn. If the material does not fall into these two categories, the expression should be protected. For example, although children under 18 are in the artwork of Mann, her expression should be protected because she is a professional photographer, and these pictures are her artworks.
I employ the philosophical stand point of Emerson and his Expression-Action theory to support my argument. He claims that the expression of all medium including art and music should be protected under the first amendment (438). According to Emerson, freedom of expression is for “achieving” a more adaptable and hence a more stable community. His Expression-Action theory broadly protects various kinds of expression including obscenities including “books, films, theatrical presentations, sculpture, paintings etc (439).” However, he strictly restricts action “consisting of live conduct (439).”
Although child pornography should be restricted in order to protect children, the definition of it should be carefully considered because it may suppress the expression of artists like Sally Mann. I believe that child pornography deserves SLAPs value, and the material should be taken as whole.
In the Osborne case, the Ohio court defined nudity as a “lewd exhibition of nudity” or “graphic focus on the minor’s genitals.” Under these vague definitions of nudity, many artistic expressions may be suppressed, and Mann’s pictures are not immune to it. The picture of her son’s genital area could fall into the second of “graphic focus on the minor’s genitals” category under the Ohio definition. The picture is clearly focused on his genital area, and other parts of his body were barely captured. Although the expression itself is not especially obscene, the picture could be a form of child pornography under the definition used by Osborne case. However, if the material were an obscenity, it would not be a problem because the artistic value would be considered according to the Miller v. California case.
However, the art value of child pornography is often not considered. I think that such a broad definition of child pornography is likely to suppress artistic expressions. I believe that SLAPs value should be applied to child pornography as well, and the material should be taken as whole. In this way, Mann could reasonably argue the material is art. The example is “The Tin Drum”, in which is an award winning movie in Germany. The movie also has sexual scenes with a 11 year-old boy and an adult woman, and these scenes became a controversy in the U.S. Although the movie was once banned in Oklahoma City, its artistic value was eventually recognized. My point is that material with an exhibition of children or focus on their genital area may not be child pornography as whole. Also, in child pornography cases, the compelling government interests are including 1) Protecting actual minors from physical and psychological harm 2) disrupting the market of child porn. According to National Center of Missing Exploited Children, “It is important to realize that these images are crime scene photos – they are a permanent record of the abuse of a child. The lives of the children featured in these illegal images and videos are forever altered.” Therefore, artistic materials that do not fulfill these two categories (in other words, artistic materials do not involve any forms of child abuse) should be protected under the first amendment. For example, in Mann’s artwork, these children were not forced to contribute to her artwork and the material does not contribute to the child pornography market. I believe that the definition of child pornography should be narrowly considered, so it does not suppress artistic expressions. The courts could focus on how the material is created. For example, the court should restrict Mann’s picture if Mann forced her children to be in her artwork. Also, instead of simply restricting the material, the court could focus on restricting the pandering of the material in the child porn market in order to protect these children.
The Osborne case expanded the restrictions on child pornography further than the New York v. Ferber case in that there are two added conditions. The two conditions are that “the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein” or “the minor’s parents or guardians have consented in writing to such photographing or use of the minor.” If the artistic value of Mann’s work would be considered, her artwork would be protected. In this case, the pictures are taken for a proper reason (as art work) by a professional photographer (by the person having a proper interest). In addition, Mann is the parent of these three children, so it fulfills the second condition. Therefore, Mann’s expression should be protected. Also, in both the Ferber and Osborne case of child pornography, compelling state interests are mainly protecting actual minors or/and disrupting the market for child porn. If the material does not fall into these two categories, the expression should be protected. For example, although children under 18 are in the artwork of Mann, her expression should be protected because she is a professional photographer, and these pictures are her artworks.
I employ the philosophical stand point of Emerson and his Expression-Action theory to support my argument. He claims that the expression of all medium including art and music should be protected under the first amendment (438). According to Emerson, freedom of expression is for “achieving” a more adaptable and hence a more stable community. His Expression-Action theory broadly protects various kinds of expression including obscenities including “books, films, theatrical presentations, sculpture, paintings etc (439).” However, he strictly restricts action “consisting of live conduct (439).”
Although child pornography should be restricted in order to protect children, the definition of it should be carefully considered because it may suppress the expression of artists like Sally Mann. I believe that child pornography deserves SLAPs value, and the material should be taken as whole.
Subscribe to:
Posts (Atom)
