Law Paper #1

Kelly Stone
Communication Rights & Law
Professor Bammert
04/20/2009

In the case concerning whether or not to ban Yale’s gossip website, I believe Haiman’s communication context theory should be used to resolve the case. When putting myself in the position of those who were hurt by the remarks made on the site, I was more inclined to argue for the use of Emerson’s expression-action theory, which says that “[…] when libel is directed toward a private individual in a way that does harm to that person’s feelings […] it is no longer protected” (Herbeck and Tedford 439). However, when thinking about it further, if this part of Emerson’s theory were consistently implemented in all “gossip” cases, there would be legal issues with all gossip websites and magazines. Thus, I then agreed with Haiman when he states that the law “[…] is an inappropriate tool for dealing with expression which produces mental distress or whose targets are the belief and values of an audience” (Herbeck and Tedford 440).
University leaders are considering punishing those who log onto the site, which I believe would result in a chilling effect. One Yale student said that if something about them showed up on the site, and it became available to his or her employers or friends, that the consequences would be “devastating.” I sympathize with this student; however, before shutting down a site, or punishing those who log onto it, if Haiman’s theory were to be used, it would need to be decided whether or not the harm done was “direct, immediate, irreparable, and of a serious material nature” (Herbeck and Tedford 440). I believe that a gossip website may result in irreparable harm and some material may be of a serious nature, so the law may decide to place some restrictions or monitoring “rules” on the site, but that it would be a violation of free speech to shut the site down entirely or punish those who log onto the site.
In the case regarding “offensive” shirt slogans at Jackson high school, Emerson’s expression-action theory should be applied to resolve the controversy. The primary concern over the shirts is that they supposedly have sexual connotations and some students’ feelings were hurt because they feel it was intentional. The fact that the ASB leaders asked the students not to wear the shirts and, moreover, to give the shirts back, is a violation of free student speech. If, on urbandictionary.com, some of the words on the shirt are linked with crude, sexual connotations, but they are also linked with SpongeBob SquarePants, it’s difficult to make an argument that one, it was meant to represent the sexual meaning, and two, that it was intentional. Additionally, if it was intentional, and meant to be linked to sexual connotation, I still don’t believe students should be asked to return the shirts, unless they want to. Student’s have a chance to explore and use their freedom of speech to react to these shirts, and they may learn about themselves (individual self-realization) by reacting in whichever way they please.
The reason for choosing Emerson’s theory, which, in regards to obscenity, states that “most of what society calls “obscenity” is a form of expression fully protected under the expression-action theory,” is because it also states that “[…] sexual materials thrust upon unwilling receivers so as to produce a ‘shock effect’ would be classified as action and could be prescribed by law” (Herbeck and Tedford 439). Thus, this theory would allow those who were offended the chance to argue that the shirts were an “action,” but I don’t believe they would succeed with such an argument.
The controversy between Fox and the FCC is very intriguing; I still find myself surprised to the hear “shit” on television. With television, I do believe there should be some restrictions placed upon indecent language and images, especially because it is difficult to monitor the young and their television viewings. Thus, I agree with NRB when they say: “[…] the welfare of American, its families, and its youth, will be detrimentally affected by mass communications which contain unrestrained indecency, whether in language or imagery.” For this case, I would use Chafee’s theory. He allows “[…] the punishment of ‘worthless’ speech, such as profanity or defamation because he sees no constructive role for such expression in a free society’s debate over ideas” (Herbeck and Tedford 436). Thus, I believe that using this principle would result in the conclusion that much of the indecent language used on Fox would be considered “worthless” versus “worthwhile” and that some indecency enforcement regime would occur.
After looking into these cases, and the many ways they could turn out, depending on the principles applied, I believe that all of the principles around law theory and freedom of speech should guide our understanding of communication justice and freedom of expression. All of these principles affect the outcome of cases and controversies, so I think our understanding of communication justice and freedom would be guided best if one had the knowledge of these often opposing approaches and theories.
Tedford, Thomas L. Freedom of speech in the United States. State College, Pa: Strata Pub., Inc., 2005.