CMJR 494 FINAL Blog Post

After reading many-a-Supreme Court decision, and reviewing this quarters' materials and blogs various times, I have come to the conclusion that my opinion has tended to lean toward 1st amendment protections, but truly has depended on the specific case. Like the Supreme Court has done throughout history, I have applied different levels of scrutiny to each case.
In most circumstances, I stuck with the decision to only punish speech when it harms. However, when it came to child protection, I decided less scrutiny was necessary in order to prevent future harm.
I found myself wanting to punish/prosecute certain people that went beyond what I personally believe is incorrect behavior, but quickly learned in this class that personal beliefs do not hold superiority over applications of the amendments' protections. Franklyn S. Haiman summed this problem up the best when he said that respect for the rights of minorities "does not come naturally to most people, [for] there are powerful herd instincts constantly impelling majorities to suppress the deviants in their midst." Therefore, I often went against my first instincts, and decided to instead protect those that were testing the boundaries of free speech.
The philosophy I most commonly agreed with was that of Emerson. I agreed with his expression- action theory, which protects expression while allowing for constraints on action. I believe this is the epitome of the First Amendment: expression should be protected at lengths, but once expression crosses over into the physical action, different scrutiny must then be applied. This can clearly be seen in many of the threat cases (nooses, crosses, etc).
Politically, I did not have a consistent case to reference to in many of my decisions, it fluctuated with each problem that was presented. I guess I could just say as far as my politics, that I am only consistent on the most basic ground: free speech is necessary for democratic government.
Finally, as it is apparent now from the inconsistencies above, I did not tend to rely on a free speech for ____ theory. But looking back, I would say that ideally, I would have used the free-speech-for-truth approach, even though I do believe that free speech is essential to personal self fulfillment.
I learned a lot about where I stand on political issues and how important I hold interpretation of the law. I think more than anything, I learned the most about the necessity of open-mindedness. Restrictions of speech in the past (on women, slaves, religious speech) have shown me that valuing protection over restriction is what will allows for a true democracy.

CMJR 350 Blog Post #4

CMJR 350 Blog Post #4 (Questions for Chapter 12)

1. As our book states on page 351, "Our personal value system encompasses our values of right and wrong, good and evil. Society collectively forms expectations for behavior." Philosophically, I am wondering if society's expectations for behavior are always correct. After a Thanksgiving discussion this last weekend, I brought up numerous instances when majority rule in the past is definitely looked down upon today (ie. slavery). Therefore, would you agree or disagree that society's collective expectations for behavior are always "right"? And if not, how does that change the theme of the chapter?

2. On p. 352, the authors state,"The moral authority of government originates form the collective beliefs, attitudes, and values of citizens- the obligations and duties derived from shared community values and ideals." I think this is a problematic statement considering the controversies that surround any person, idea, or bill that expresses a certain belief. No one ever agrees on morality, moral authority, or beliefs. There have and always will be dissenters to any movement or idea. Therefore, how can a DEMOCRATIC government ever truly have moral authority? If all parties must be represented, wouldn't it be immoral to take a side of any event?

3. And finally, relating back to the theme I have addressed above, I wonder how it is possible that any one can truly be democratically ethical? If you must listen to all voices, and none of those voices agree, how do you choose what is truly right or wrong? On page 358, the authors wrote that "our beliefs, attitudes, and values form the basis of our character as individuals and as a society." Because everyone has a different upbringing, background, and cultural perspectives, it seems like it would be impossible to form society's values. "They also define what behavior and conduct we will judge as ethical in our daily interaction." But how will there ever be a consensus, when as mentioned earlier in the book, everyone has different opinions and values?

CMJR 494 Blog Post #6 (Animal Cruelty)

CMJR 494 Blog Post #6 (Animal Cruelty)

Analyze the philosophical and doctrinal issues with regard to banning depictions of illegal animal cruelty as you explain whether you will uphold or overturn the law Congress passed. Be sure to ground both philosophically and doctrinally. Pay attention to the issues of scrutiny (does the government have to provide a compelling reason for banning this speech or would a lower level of scrutiny suffice?) as well as to the issue of overbreadth. If you strike down the law because you think it is overly broad, what type of law, if any, would you propose?

Just as the Supreme Court justices seem to be leaning in United States vs. Stevens, I would agree due to the issue of overbreadth that the law regarding crush videos that Congress passed should be overturned. However, there a couple parts of this decision that I would add changes to in general. First, the level of scrutiny that the government must prove, and second, when it comes to the issue of overbreadth, I would go ahead and propose a new law.

I would first like to state that I think that animals do deserve some sort of governmental protection, but it is hard to draw the line for obvious reasons. Yes, as the 3rd circuit pointed out, the well-being of humans does take precedent over the well-being of animals. I do understand that with an implementation of a law that protects animals' rights over humans, it would stir up major ethical issues. At the same time, I find it difficult to overturn a law that could potentially protect animals from pro-longed pain and torture. But where would that law's authority end? That is the most difficult line in the whole case. The majority of the US eats animals every day, just as one of the justices points out about the controversial dish of foie gras and without the perfect wording for a law to protect animals, all of a sudden the American population might have to become vegetarian.

I believe the offense principle seems to be the most applicable to United States vs. Stevens. The reason I believe offense is the best philosophical argument is because it is hard to argue that the harm principle would apply to animals. As most people tend to argue, the animals aren't haunted by the pain or humiliation later in their life, after watching the "crush videos" (if the survive). There is no way to know the psychological affects of animal cruelty of the animals, therefore, harm is hard to prove. (Sidenote: I do not agree with the argument that claims that dogfights will not go away if the videos are put to a stop, but that making of child pornography would cease if the children were no longer allowed to be exploited. This is a poor argument because children are still exploited even when child pornography is illegal. I believe that if there is a demand for something, which there obviously is in regard to underage sex [just watch "To Catch a Predator" on 60 minutes] then there will continue to be a market for it. And even if they stop making videos, who is to stop those people from having viewing parties of the real thing at their house? This is exactly what happens in the sense of animal cruelty. State laws prohibit certain actions, but it still happens- and it happens in real life arenas instead.)

So Joel Feinberg's Offense principle seems to be the most applicable in the hypothetical upholding of the law. As was argued in FCC v. Pacifica:

He defines “harm,” in

the sense relevant for the Harm Principle, as involving the viola-

tion of a person’s rights which involves a setback to that person’s

interests.5 Thus, for example, I am harmed by your intentional

breaking of my legs in that you did so against my will and your

doing so sets back my general interest in being able to walk around

on my own. “Offense,” on the other hand, in the sense relevant for

the Offense Principle, involves conduct producing “unpleasant or

uncomfortable experiences – affronts to sense or sensibility, dis-

gust, shock, shame, embarrassment, annoyance, boredom, anger,

fear, or humiliation – from which one cannot escape without unrea-

sonable inconvenience or even harm.”6 Being offended, in other

words, involves being subjected to a particular kind of nuisance:

I both suffer a “universally disliked mental state”7 caused by the nuisance, and

“I attribute that state to the wrongful conduct of

another.”8

Of course, most of us probably have an interest in not being

offended, but if that is true, then every time we are offended we are

straightforwardly harmed, according to the preceding definition of

harm, insofar as our general interest in not being offended has been

violated.9 Thus it would seem that all cases of offense are actually

cases of harm.

I agree with the concept of the law that Congress came up with, but it is obvious that it is unconstitutional. I believe the threefold argument that the 3rd circuit presents is completely applicable due to the fact that the law is too broad. The attorney in favor of the law, Mr. Katyal, brought up Ferber vs. New York and the Free Speech Coalition cases and said that in those decisions congress was not targeting the contents of a depiction; rather, it was trying to dry up the underlying market (child exploitation in that case).

The Supreme Court did not seem to buy this argument and instead brought up American Booksellers vs. Hudnut where cities apparently attempted to make violent depictions the subject of civil suits. Justice Ginsburg said, "The 7th circuit said that that was a blatant violation of the 1st Amendment, to go after purveyors... and I believe we summarily affirmed."

This illustrates why the issue of overbreadth is so critical- it would include way too many outlets and parties that we normally wouldn't think of when seeking to prosecute those who torture animals. As pointed out above, it could include restricting certain types of food, certain types of hunting, etc...

As Justice Scalia said, "You can't separate the means for the end and say, since its end is simply to prevent the activity, the means, which is prevent communication is ok." Because it definitely would not be ok in this sense.

Therefore, I am not sure what my exact rewording of the new law would be. I would like to reinstate some type of law that would protect animals from being needlessly tortured for entertainment. However, if the states continue to implement laws against the cruel actions toward animals, it may become irrelevant for the Supreme Court to have to rule on the depictions, because there wouldn't be any to monitor.

In conclusion, I believe animal cruelty is wrong, but the law in question in unconstitutional due to overbreadth.

CMJR 350 Blog Post #3

CMJR 350 Blog Post #3 "Questions for chapter 8"

1. Woodward and Denton claim in chapter 8 that "Human communication is a purposeful process of selection, interpretation, and symbolism" (p. 188).

After taking a class focused on the dynamics of communication, one of the key ideas that stuck with me is that not all communication is purposeful or intentional, and that is actually the beauty of communication. With the constant encoding and decoding to different audiences with different messages, often times we communicate an idea, or more commonly an expression, that we did not intend. In that same class, we researched nonverbal communication extensively and even took the whole quarter to interview various people on the way we react in certain situations, or certain moods, etc. At the end of the quarter, we all presented on what people had said about our nonverbal cues, and everyone was surprised at the emotions or reactions that they display without even knowing it.

Therefore, my question for this statement is, "is human communication always purposeful?" If so, please explain. And if not, why do you not believe it is always purposeful?

2. On page 190, Woodward and Denton claim "Females are superior in encoding nonverbal skills, especially in visual cues and nondeceptive messages. Women are also more accurate interpreters of nonverbal cues than men. In short, women are more expressive and sensitive to nonverbal cues."

At first this statement came across to me just like so many of the stereotypical traits of women versus men. How many times have I heard that women are more emotional, more sensitive, less violent, more maternal, and less physical than those men that don't let emotions ever slow them down?

I am always bothered by this comparison because I know way too many men that are much more emotional than most of my girl friends. Because I am capable of producing children does not make me less rational than any man. Women are historically incapable of being in a leadership position because of their "irrationality and mood swings" which seems to translate today into "sensitivity and emotions."

With the authors' choice of words aside, I went ahead and researched the support behind the claim above (since there was no footnote) and I actually did find evidence to defend the claim that women are more accurate at interpreting nonverbal clues. This sentence, out of the three presented, is the only one that holds weight as far as I can find, and also is the least misogynistic.

One editorial comments on the finding of a scientist who researched the differences of the male and female brains. He writes, "the female brain has more "connections" between the brain's two hemispheres, and women have 11 percent more brain cells in the area of the brain called the planum temporale, which has to do with perceiving and processing language." -http://www.associatedcontent.com/article/114977/this_just_in_women_communicate_better_pg2_pg2.html?cat=41

Other sites supported this information and backed up the claim that women do pick up any many more language quirks than men and even process more communicative events a day than men.

So, do you agree with Woodward and Denton's statement above? Or do you think that some men communicate better than some women and vice versa? Or does it depend more on the culture than gender?

3. Woodward and Denton wrote that in a compliance-gaining situation, "not all strategies are appropriate in all situation" (p. 193). They go on to explain different factors that might change the situation and how you should respond accordingly. The main strategies they define are: direct requests, rationality, exchange, manipulation, coercion, indirect, and emotional appeals. The types of things they believe that need to be taken into consideration before engaging in one of these strategies are: intimacy levels, consequences, resistance, and benefits.

What do you think about repetition? What if you used the perfect strategy to persuade your parents to let you do some activity- would you try that same tactic again the next time? Or do think the strategies lose persuasive value with the amount of times you try them? Or do you think the strategies strengthen your persuasive arguments with repetition?

CMJR 494 Blog Post #5 (Perverse Child)

CMJR 494 Blog #5 Question #3

Sally Mann's photos from Immediate Family are absolutely right on the line between pornographic and semi-innocent. I am confident in saying that there is a sort of beauty to them, but at the same time they illustrate a sort of violation. Ah yes, this may sound exactly like what a true artist attempts to create in all of their works, a little controversy in their summarization of the world around them. However, I do believe Sally Mann crosses the line. An artist, yes. A mother, yes. An enabler, yes. Sally Mann's Immediate Family collection holds some truly gorgeous, captivating images, but just because some of those photos are beautiful, it does not mean that we should throw out rational moral standards and include the whole collection under the same description.

I do believe that some of the photos in the Immediate Family collection are pornographic. I also agree that some of the photos contain "child pornography" under the definition by Osborne v. Ohio: any "graphic focus on the minor's genitals" and that child does NOT have to be engaged in sexual conduct. Where I disagree with Osborne v. Ohio is when an exception to child pornography is given to "the minor's parents or guardians [that] have consented in writing to such photographing or use of the minor." This exception opens the door to horrific possibilities, namely, the sex trade, where consenting parents can pimp out their children to the highest bidder. This is a whole different topic though.

Back to Osborne, the Court determined that neither public dissemination nor private possession of child pornography is protected by the Constitution (same with Ferber). That would mean that if it is agreed that content in Sally Mann's collection Immediate Family is indeed pornographic, she would not be allowed to put the photos into a book and sell them to the world, which was the final outcome of her project.

So, is the content of SOME of the photographs in Sally Mann's collection pornographic. Yes, and according to both the Harm theory AND the Offense theory. In New York v. Ferber, the material need not be found to appeal to prurient interest of the average person (although I would argue some of the photographs COULD qualify as appealing to the average person) and that the sexual conduct need not be portrayed in a patently offensive way. Therefore, I would protect some of Sally Mann's photos, but not all.

Three of the photos I would not protect:

I find the content of these three photos able to be prosecuted under both Osborne and Ferber, (if parental consent was not applicable in Osborne).

I believe that these are all "graphic focus on the minor's genitals" and even more than that, represent some offensive themes: torture, incest, and death, respectively. I am not saying that those themes should not be protected in various works, because they are broad and have different contexts, but in the sense of using those themes with child nudity, it creates very fetish-esque pornographic images.

I would not change the definition of child pornography to protect photos such as these by Sally Mann. I do believe some of her photos (even from the same collection) are truly art and deserve a place in the art world, such as:

There are a few different issues that I think are relevant to discuss after these statements.

First, Sally Mann's defense of: "I didn't pry these pictures from them -- they gave them to me" -http://www.blogger.com/post-create.g?blogID=7579427485267241731

This is completely irrelevant for the fact that they are CHILDREN, not adults, and therefore any consent on their part is not applicable. This is where student waiver forms come in, and parent/guardian signatures! Society believes that children are incapable of making their own decisions before they are declared adults and are not considered responsible for the majority of their actions (however, the recent sexting cases may set a different standard).

Second, I do not agree with Tedford and Herbeck's statement that: in the United States, obscenity is the last religio-moral heresy to be suppressed by government authority on behalf of the nation's majority religion (p. 163). If this is true, where do the laws for not killing, not stealing, etc, come in? Because, technically wouldn't those be the basis of the United State's majority religion as well? Aren't those principles grounded in by religion? If we didn't have religions "enforcing" peoples' moral grounding, is that supposed to mean that the government would be depraved of morality?

A third issue that makes the Sally Mann photographs even more controversial is the continued support and consent of the children in the photos. Her children to this day are standing behind her photographs with complete consent. This brings a very tricky issue up. As adults, they are consenting for the release of photos of themselves as minors that may be considered pornographic. That would seem to justify their publication, but I would argue that just because a 16 year old today consents to have sex with an adult and release it on film, it does not mean that that material is legal. If the photos are proven to be pornographic than the 1977 legislature of New York should apply to both cases making it a crime to use a juvenile in sexual performance and even convict those distributing material that is "nonobscene child pornography" (p. 150).

To tie in philosophical doctrine with the argument of the consent of the children, I would apply John Stuart Mill's Harm principle. Because society does not allow for children to speak as adults or carry the rights of adults, their consent to such photos is not considered. Without that consent, it is unethical to photograph children as was mentioned above. Because the child's best interest cannot be decided by the child, it would be wrong to try to exercise what the parent (in this case) believes to be best if that best is taking pornographic pictures of the child.

As stated before, both the Harm and Offense principles should be applied in the evaluation of these photographs. With these doctrines and definitions, I believe Sally Mann's explicitly pornographic photographs of "graphic focus on a minor's genitals", "lewd exhibition of nudity" should not be protected.

Furthermore, I would stick with Ferber in saying that "material at issue need not be considered as a whole" meaning that neither one photo as a whole, or a collection as a whole is enough to justify the "graphic focus on a minor's genitals." If Sally Mann removed the photos in question, I would protect the rest of the photographs in Immediate Family as art.

CMJR 350 "Out of Class Persuasion and Consumption"

I am a sucker for advertising. I didn't need to walk through a grocery store to have this realization, but it did help to reinforce the fact. For example, when presented with the option of a variety of gum, I looked carefully at the different packages and went with the much more stylish and fancily named:

even though it was more expensive than the regular Wrigley.

Every single aisle is stocked with different companies competing for your attention with their product. It is hard to find just one item that you don't double-take after you pick it up to make sure the competitor's isn't any better than your ol' reliable. Everything pops out at you with a discount and fun color on every shelf. If I want a can of soup, I have to make sure I'm getting the best deal AND the prettiest can. I am very visually oriented, so the better looking the product, I will probably be more likely to buy it. I do not know if this is the same for most people, but I must assume so because it encourages companies to keep doing it.

The check out stand may be the worse place for me- I'm reminded of the things I need but don't need. All of the check-out lines force you to read the advertisements while waiting for the line to move and of course I will be tempted to buy a magazine, some more candy, and maybe that special edition bag of chips as well. The persuasive appeal for the magazine is that now I've just read the headlines for the articles inside, and if I don't buy it, I'll never know the ending! That's like watching a movie except for the last 20 minutes! I am convinced by the lifeless magazine that I actually should know if Robert Pattinson and Kristen Stewart are dating!

And as for the candy, well once again, I like the amazing colors that I imagine are much more flavorful than my usual candies.

I actually did buy this new type of skittles strictly because of the fact that they have "crazy cores" according to the package. (But they did end up being very good)...

Along with just packaging, colors, and quick lines, the positioning of the products is also very important in convincing me to buy- and this is when the chips come in. They just seem to know that as you are crossing of your shopping list item after item, you will remember the dip, but forget the chips. Fear not, however, because these stores will keep them right where you will remember, exactly before the check out counter. And while you're there, you may as well get more than one flavor. And this is how, I a poor college student, become even poorer. With the sneaky tactics of subliminal food messaging, and the blatant product placements, or even food associations- the meat always right next to the cheese, so you of course have to get BOTH for a sandwich!- I will willingly accept all of this persuasion as if guided around by the companies themselves.

The biggest trickster of all to me Costco, however. This "consumption" place not only provides you with lots of things you don't need, but still buy, they ALSO catch you on your way out with a full meal. You cannot leave Costco without smelling that pizza or hotdog- you actually smell it the entire time you are shopping and then after walking around the 10-football-field-sized warehouse you are on the verge of starvation, so what else can you do but buy a hotdog and pepsi for the road?

In the end, as much as I despise spending money on unnecessary products, I really enjoy experiencing the persuasion in grocery stores or any food vending place. I like to see the options, varieties, and as I said before, I really like the pretty packaging. So I guess my final thought is that I'm so used to all of these marketing strategies that I am not annoyed by the constant bombardment, but rather content with the options.

CMJR 494 Blog Post #2

CMJR 494 Blog Post #2

A quick background on Ali Al-Timimi:

Ali Al-Timimi, a former Islamic lecturer born in Washington, DC, was alleged in a federal indictment to be the spiritual leader of the Virginia Paintball Jihad Network, a group of eleven men indicted of crimes related to terrorism. Al-Timimi was indicted in 2004 and was convicted in 2005 of soliciting and engaging others to levy war against the United States and attempting to contribute services to the Taliban. Members of the Virginia Paintball Jihad cell testified at Al-Timimi's trial that shortly after September 11, 2001 he convinced several of them to travel to Pakistan to obtain training for jihad from the U.S. designated Foreign Terrorist Organization Lashkar e Taibah.[1]He was sentenced to life in prison plus 70 years without parole. -http://www.investigativeproject.org/profile/104

As a Supreme Court Justice, I believe that there are certain elements that must be considered in the case of Ali Al-Timimi and the most important of those is whether or not Al-Timimi's "questionable" speeches were in fact protected by the First Amendment. One writer, Kenneth Anderson, cleverly points out an important observation about the prosecution in this case saying, "If they wanted to establish a strong precedent that you can’t preach violence against the US, they did so – but that is the wrong precedent, historically and legally, under the First Amendment."

Ideally, time of war in itself should be an irrelevant platform for the prosecution against any individual. Standards should not change from one time to another. Therefore, as a rule applicable in almost any similar case, the prosecution must prove beyond a reasonable doubt that Mr. Al-Timimi's words advocated "inciting or producing imminent lawless action and [are] likely to incite or produce such action", as was decided in Bradenburg vs. Ohio in 1969. Two judges from that case went further to say that even "the clear-and-present-danger test has 'no place in the interpretation of the First Amendment'" (Tedford, 66). From the evidence provided, there is not enough evidence to conclude this stipulation beyond a reasonable doubt.

"In Al-Timimi’s case, however, the important requirement of imminence was not met. The men to whom Al-Timimi spoke did not arrive at terrorist training camps until weeks later, demonstrating that Al-Timimi’s speech was not immediate enough to pass the Brandenburg standard. Al-Timimi’s case is therefore troubling as precedent, because it indicates that the government may circumvent the imminence requirement of Brandenburg in the context of domestic terrorism prosecutions," -Elisa F. Kantor

There are many philosophers who would back the position of protecting Ali Al-Timimi's speeches, two of the more obvious being Alexander Meiklejohn and Thomas Emerson.

Meiklejohn identifies an absolute privilege for congressional debate and then argues for its extension to political debate in general. He believes that the First Amendment holds priority over the Fifth and is "absolutely privileged and may not be abridged-- not even by the clear-and-present-danger rule."

"The latter [form of speech] correlating the freedom of speech in which it is interested with the freedom of religion, of press, of assembly, of petition for redress of grievances, places all these alike beyond the reach of legislation limitation, beyond even the due process of law. With regard to them, Congress has no negative powers whatever." -Alexander Meiklejohn

Thomas Emerson agrees with Meiklejohn in that he believes the "various tests used by the Court- such as bad tendency, clear and present danger, incitement, and balancing- not only are vague... but vary so much from case to case that they 'can hardly be described as a rule of law at all'" (Emerson, The System of Freedom of Expression, 1970). He goes on to explain his expression-action theory:

"The central idea of a system of freedom of expression is that a fundamental distinction must be drawn between conduct which consists of 'expression', and conduct which consists of 'action.' 'Expression' must be freely allowed and encouraged. 'Action' can be controlled, subject to other constitutional requirements, but not by controlling expression..." (Emerson, System).

This would mean that Mr. Al-Timimi's speeches were all forms of expression, protected by the First Amendment. There were religious calls to actions, as Meiklejohn stresses should always be protected, and there was only expression- no direct action whatsoever on the part of Mr. Al-Timimi- which Emerson fully supports.

Therefore, Mr. Al-Timimi's words and expressions should be protected, and his sentence should be revised.