Law Paper #2

Westboro Baptist Church Hate Speech: Protection & Censorship
The Westboro Baptist Church (WBC) members have become publicly well known and hated because of their regularly staged protests. They have protested at funerals of victims of plane crashes, car accidents, and murder, as well as at funerals for American soldiers. They protest at events featuring world leaders, and are protesting in foreign countries. Since the Church protests issues related to homosexuals/homophobia, murder, accidents, politics, and war soldiers, it is difficult to generalize and protect or censor all of their hate speech. Thus, it is my belief that, while specifically considering Chafee’s theory of “protecting speech that serves the social interest,” as well as Emerson’s “expression-action” theory, some of the Church’s hate speech/acts of protest should be protected, and some should be censored.
What is most important to consider about Chafee’s theory is his concern for expression that serves an “individual interest” and that which serves a “social interest” (Herbeck and Tedford 435). Also, Chafee believes in punishment for “worthless” speech, while “worthwhile” speech deserves maximum protection. “Worthless” speech involves “[…] profane, indecent, or defamatory” language, which is of “[…] slight social value as a step toward truth;” “worthwhile” speech involves “[…] the greater social interests of ‘order, morality, and the training of the young and the peace of mind of those who hear and see’” (Herbeck and Tedford 436). Considering that the Church has made public statements that “we’re a doomed country – a doomed generation” and has made signs saying “Thank God for dead soldiers,” (Fred Phelps and the Westboro Baptist Church) Chafee’s theory would surely consider this “worthless” speech, as it is not constructive, nor does it serve the greater social interest Chafee discusses.
Thomas Emerson’s “expression-action” theory attempts to make distinctions between that which he considers “expression,” which “[…] must be freely allowed and encouraged,” and that which he considers “action,” which “[…] can be controlled, subject to other constitutional requirements, but not by controlling expression” (Tedford and Herbeck 438). When Emerson’s applies expression versus action to cases involving sedition, defamation, obscenity, and provocation to anger, the much of the Church’s hate speech/acts would likely be protected, but some wouldn’t. For example, “[…] when libel is directed toward a private individual in a way that does harm that person’s feelings, it shifts from expression to action […] and is no longer protected” (Tedford and Herbeck 439). Thus, some of the Church’s funeral protests probably wouldn’t be protected, as the families are directly affected and hurt.
With the Church, it is also difficult to decide what type of action to take when considering whether this type of hate speech/action should be subject to a “bad tendency” test or an “immediate incitement” test. In the Brandenburg vs. Ohio case, which resulted in the incitement standard, the Ku Klux Klan leader actually states that, although they are “[…] not a revengent organization […] it is possible that there might have to be some revengeance [sic] taken” (Tedford and Herbeck 65). They also had a video which included phrases “[…] that were derogatory of Negroes, and, in one instances, of Jews” (Tedford and Herbeck 65). The Church has videos on their website entitled “Thank God for Katrina,” “God Blew Up the Troops,” “Fag Soldier in Hell,” and “The Beast Obama;” although the Church is clearly in support of natural disasters and war tragedies, which they consider to be, in a sense, Gods vengeance, they do not threaten to take any sort of revenge, other than the protesting, themselves. The incitement test does protect even threatening speech (Tedford and Herbeck 66). The Church’s hate speech, then, would be fully protected if it were subject to the incitement test, and this is the test they should be subjected to, rather than the “bad tendency” test.
The “bad tendency” test is primarily concerned with the possibility of danger, which includes the threat of violence; the test “[…] allows government to stop or punish speech early in its utterance on the grounds that it has a ‘tendency’ to create a serious problem sometime in the future” (Tedford and Herbeck 465). This “nip-it-in-the-bud” approach has been used against the Church; for example, when the Church announced their plans to go to Great Britain to protest a play about the murder of a young gay man, The United Kingdom Border Agency said it would prevent them from entering the country (Fred Phelps and the Westboro Baptist Church). In the case that resulted in this test, Dennis v. the United States, the “gravity of evil” presented by communism, and their threats to overthrow the government, were so great that they didn’t want to wait for something to happen before stopping it. In my opinion, although the WBC claims to hold only “peaceful” protests, the primary issue is that the “gravity of evil” is so great that others may attack them, and that should be of great concern, especially when considering the safety of the community and those who are a part of whatever event is being protested. Thus, although I wouldn’t subject them to this type of test, I do believe there are other ways, such as time, place, and manner restrictions, which can be used to protect the community from violence toward the protestors, and, potentially, innocent victims of any attacks made on “the most hated family in America.”
One example of the violence caused by WBC hate speech was during a picket in Seaford, Delaware (May, 2006). Angered by the hate speech, “[…] a mob broke through police lines and tried to assault WBC members who fled into a police van. Some of the mob then began banging on the van attempting to get inside. Two windows of the van were shattered before the van could get away” (Westboro Baptist Church). Additionally, when the WBC picketed a marine’s funeral in Maryland (October, 2007), they caused such great and “intentional emotional distress” against the family of the marine that they were sued by the family, and have been held accountable for $5 million in damages (Fred Phelps and the Westboro Baptist Church).
Considering the danger and emotional distress caused by these two instances, constraints of time, place, and manner should be implemented for this group. In a 1993 Florida case regarding picketing around women’s clinics, the state court “[…] enjoined abortion protestors from interfering with access to a women’s clinic […] by creating a 36-foot buffer zone around clinic property (Tedford and Herbeck 275). They also prohibited chanting, singing, and other noisy demonstrations, as well as displaying “images observable” to patients in the clinic. Picketers were also not allowed to approach patients or clinic employees within 300 feet of the clinic.
The type of limitations implemented in the Florida women’s clinic case would be most effective for this group. “[…] [A] number of states and the federal government have [already] passed laws designed to limit the group’s ability to disrupt funerals” (Fred Phelps and the Westboro Baptist Church) Leader of the Church, Fred Phelps, “[…] has repeatedly challenged the legislation, on both free speech and freedom of religion grounds, with some measure of success” (Fred Phelps and the Westboro Baptist Church). Additionally, the group is extremely media hungry and considers any media attention a victory. That said, if action is taken that is more stringent or repressive to the group than certain time, place, and manner restrictions, it is likely that the WBC will strike back and feed off the media attention. They may also need this type of venting process/outlet, so that they don’t end up engaging in greater, more dangerous and dramatic acts of hate. In the end, then, most of the WBC’s messages will be given the most protection, while some of their hate speech plus protest actions will be limited in order to protect their safety, as well as the safety and emotional stability of the community and funeral goers.


Works Cited
"Fred Phelps and the Westboro Baptist Church." ADL: Fighting Anti-Semitism, Bigotry and Extremism. 22 May 20.

Tedford, Thomas L. Freedom of speech in the United States. State College, Pa: Strata Pub., Inc., 2005.

"Westboro Baptist Church -." Wikipedia, the free encyclopedia. 26 May 2009 .

Westboro Baptist Church Home Page. 22 May 2009 .

Westboro Baptist Church Home Page. 22 May 2009 .

Communication & Social Change Blog #3: Guest Speaker Haven Ley from The Bill and Melinda Gates Foundation

Over the course of this term, we’ve had many guest speakers discuss their interesting experiences working with non-profit organizations and social movements. Many people who spoke about their work talked about starting with little financial and community support, building relationships, and thus building up their organization/movement. The Bill and Melinda Gates Foundation, however, clearly has a “leg up,” particularly in terms of building their foundation and funding; the speaker from the foundation, Haven Ley, and her work in agricultural development, was especially interesting to me.
Although the Gates foundation is far bigger and more well known than other foundations/organizations, Haven Ley said the foundation can’t do “anything,” nor can they go into projects, without maintaining strong relationships. This is something that every speaker has told the class about their approach toward making change and building up their organization. The snappy PowerPoint, accompanied with remarkable photographs, definitely indicated that the foundation covered every aspect of what it means to be an organization working toward social change, such as having a core belief, as step-by-step reasoning that justified their “areas of focus,” and a mission for their “global development” department. Their “core belief:” “All lives have equal value” is short and to the point, and it’s something I believe all people can stand behind.
The Foundation’s “global development” department, which comprises 25% of the foundation, focuses on the lives of those living on less than $1 a day. Their mission is to increase the opportunities for people in developing countries to overcome hunger and poverty. With the knowledge that agriculture has been neglected in sub-Saharan Africa over the past twenty years, the Foundation decided to invest their efforts in agriculture. I think this is an extremely valuable type of work to do in a developing, struggling area, as it is directly focusing on the work/source of money for many people, the land, and nourishment. Also, I really respect that the foundation heavily invests in doing “relentless” research to get to know the women farmers they’re fighting for. The Foundation takes a systemic look at the agricultural system, and tries to make change on that level; however, their projects are a great example of how interconnected personal, community and systemic change can be.
When Ley discussed the Foundation’s projects and grant profiles, it was abundantly clear that nothing is gender neutral in this work, and many projects have failed because some element was socially unacceptable in the Ethiopian and Tanzanian culture in particular. For example, the “treddle pump” bike design failed in Ethiopia because it isn’t socially acceptable to ride bikes in their culture, whereas it was a highly successful design in Ghana because it is socially acceptable. There was also the shortened ho project (3 feet vs. longer) that failed in Tanzania because women’s babies would fall off their back if they leaned that far over. How is it that people designed these projects without connecting and speaking to the people they are trying to help? It seems ridiculous to skip that step in the process, and, in my opinion, making connections with the people you’re fighting/working for, not just those you want support from, are some of the most valuable and important connections that can be made. Thus, the Foundation is spending more time focusing on understanding the culture and the women they are working to help, although this can be difficult as some do not want to be a part of the process.
It was interesting to hear Ley speak, since she represents an organization that does have a lot of money and support; their advertising and rhetorical approach was clearly still linked to the same ideas as the other organizations, but they have the ability to have more research conducted, provide remarkable advertising and photography, and take on projects that may or may not fail. I’m eager to learn more about the work they do.

Communication Rights and Law Blog #3: Copyright, Defamation, Parody, and Satire

I found our class lecture on copyright, defamation, parody, and satire to be very thought provoking. I found it difficult to answer the question, “when does a joke go too far?” Also, It was intriguing to learn more about the background on copyright in relation to parody and satire, as the information states that original works of authorship are “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration of expression” (Permber and Calvert 572). Thus, once your copyrighted work is released, anyone has the ability to reproduce the work in a less than flattering or crediting way. What’s interesting, though, is that the courts will look at the amount of pages, minutes, lyrics, etc., that someone/a group is using for a parody. After considering some of the cases and parodies we discussed in class, I think that this type of consideration is important.
First, I thought of the James Blunt parody on his song, “You’re Beautiful,” which is called “You’re Pitiful.” The parody does, in a way, ruin the song for me, as all I can hear is “You’re Pitiful” when I hear the original (although I didn’t like the original a lot, so it’s no big loss). The lyrics of “You’re Pitiful” are also a very harsh blow to who he is as an artist. Thus, the value of the work, for me, has been lessened.
When considering “The Daily Show” case, I started thinking about many Saturday Night Live skits, also. We’ve talked about how the grassroots network, and the Internet/rapid technological advances, are what some believed resulted in Obama’s win; I would also argue that many of the SNL and other TV skits, which mocked, defamed, and discredited Palin and McCain, may have lowered their credibility so much that it, like the grassroots network, contributed to Obama’s win. Since it is all done in good humor, though, this type of work tends to fall under parody, which is a “critically and usually humorous effort to lampoon a creation,” rather than defamation (Tedford and Herbeck 589). This is less related to copyright laws, and more related to parody and defamation, but it got me thinking about the use of people’s name, face, and works.
In the end, what’s most important, in my opinion, to consider when observing or hearing a parody piece on copyrighted works, is the “transformative” dimension it may have. This dimension is regarding the “[…] way a work takes an original and transforms it into something different.” Moreover, it’s especially “sticky” when thinking about the effect of use upon “[…] the potential market for or value of the copyrighted work” (Bammert’s handout – April 22nd, 2009).

Law Blog - Answer to Ben's Question (creationism, evolution, and the science drama)

In 1928 the state of Arkansas passed an antievolution law that prohibited any teacher in the public schools from teaching the theory that mankind evolved from a lower order of animals. In 1968, Susan Epperson (a biology teacher) challenged the law in the courts determine whether or not she could teach a chapter on evolution. After the Supreme Court of Arkansas upheld the law, the U.S. Supreme Court reversed the decision and declared the antievolution law an unconstitutional infringement. (pg. 128)
Q: If you were a teacher, what would your stance be on this ruling? How do you think your stance would change if you taught at a private university? What is the importance of this case to the conflict between church and state?

This case was particularly interesting to read about, especially when considering the debate in class Monday, as debaters were struggling to fight for creationism in science courses, whereas this case presents the original struggle to get evolution in the science classrooms. If I were a teacher, I would definitely agree with the final ruling that dubbing creationism as “creation science,” and teaching it as such, is for the “[…] specific purpose of advancing religion,” and that it “lacks legitimate education value because ‘creation science’ as defined in the statute is simply not science” (Tedford and Herbeck 129). Although many private universities are linked to religion, like our Jesuit University, I would continue to hold strong in my opinion if I were teaching at a private school. People at a private school may be able to better argue for creationism, as it doesn’t involve tax dollars, but they also have the benefit of teaching a range of courses and have the benefit of placing creationism teachings under religious studies, or something that isn’t considered science.

If I were teaching at the time that this case arose in 1928, like Susan Epperson, I would feel extremely conflicted. On the one hand, the new textbooks actually provided a chapter on the science behind evolution, which implies that it is truly valuable and important information to be teaching; however, with the knowledge of the Arkansas law against teaching evolution, I would be conflicted, and I admire Epperson for challenging this law. I would also consider myself to be in good company, since even Jefferson, in 1814, experienced censorship regarding a book he was attempting to publish on the creation of the world, which also highlights just how far back and how loaded this issue truly is (Tedford and Herbeck 126). If I were teaching, and/or in the shoes of Epperson, I would find myself in a struggle between what I believed to be considered academic freedom as well as quality teaching of the sciences, and my own beliefs regarding God and religion. Surely Epperson had to deal with the antievolution fundamentalists, who’s campaign was “[…] waged in simple either-or terms-heaven versus hell, religion versus irreligion, Christians versus sinners” (Tedford and Herbeck 127). It would be extremely difficult to be simultaneously fighting for education you believe in, while also, most likely, having your faith, religion, and beliefs called into question.

What I think is most interesting about this debate, especially when considering what it says about the conflicts and separation between church and state, is the language used on both sides of the issue. First, the statute that made it a crime to teach evolution in the classroom becomes known as “the monkey law,” and the antievolutionists adopted this name for their campaign to have the same law in their state. This name, in itself, is an attempt to instill a sense of silly-ness and fear when considering evolution as a science, and considering humans to be similar to monkeys. Then, the antievolutionists want creationism to be considered “creation science;” flash-forward to today, and even the debate on Monday, and now people are pushing for creationism to be taught as “intelligent design.” The language/titles around creationism vs. evolution seem to be one of the more powerful tools in guiding people’s opinion and decision on the matter, which is true for many of the cases we’ve discussed.

In the end, in regards to the conflict between church and state, I believe this case was a victory and it is an indication to the public that “[…] no level of government in the United States has the right to censor the teaching of scientific fact and opinion in tax-supported schools on the basis that the teachings are in conflict with the religious beliefs of the majority in the community” (Tedford and Herbeck 128).

Communication & Social Change - Blog #2 - Answer to Michelle's question

Communication & Social Change - Blog #2
Response to Michelle's Week 8 Question #1
1. In social movements, arguments from transcendence are used to “challenge institutions and to counter the persuasive efforts that threaten norms, values, and hierarchical relationships.” By creating these dichotomies, social movements develop their legitimacy. Many social movement organizations choose these strategies to gain a public approval. While this is great in building their legitimacy in the social arena, many times, these dichotomies, I feel, also separate organizations within social movements. For example, in the animal rights movement, PETA claims themselves to be the largest and fastest growing organization within the movement. However while they argue that this is true, they also are then arguing that other organizations within the movement are not as good and therefore as not as legitimate. While the organization may be boosted, others lose their legitimacy. Do you think my claim is true? If so what can be done? If not why not?

As we've learned through readings, guest speakers, and lectures, when it comes to social movements and their organizations, especially non-profit organizations, it can be very difficult to gain recognition, legitimacy, and a voice within a movement. Thus, employing a rhetoric of transcendence can be very effective, and I, for the most part, believe it can be one of the most effective ways to show the distinctions between what the organization stands behind, and why their stance is the better, stronger, or the more ethical one. The reason it can be most effective is because, as the text claims, "[t]heorists agree that confrontation is essential for the rise of a social movement" (Stewart et al 225). However, this type of rhetoric, like all rhetoric stemming from confrontation, comparisons, and drama, can backfire. Sometimes one organization can present a more effective and convincing rhetoric of transcendence than the opposing side/organization; then, as the text states, "[t]he social movement must develop an effective rebuttal strategy to continue its momentum toward meaningful social change" (Stewart et al 225).

Michelle is concerned that, while builing up one organization, this type of rhetoric causes other organizations within a movement to lose their legitimacy; usually, though, this type of rhetoric is used to challenge and confront the other side of the same movement, and not the same side of a movement. The text states, "In a rhetoric of transcendence, persuaders argue that a person, group, goal, thing, right, action, or proposal, surpasses, is superior to, or was prior to its opposite" (Stewart et al 225). Thus, the rhetoric is set up to challenge or confront the institutional forces and/or countermovements, and it is not typically used to challenge other organizations that are on their "side." If organizations did use this rhetoric to compete with others on their side, and/or to de-value their work in an attempt to boost their organizations legitimacy, I would definitely agree with Michelle that this strategy does seperate organizations, and it wouldn't be the most effective.

In response to Michelle's question, and the example of PETA, I don't think that by stating that they are the "largest and fastest growing organization within the movement" that they are "arguing that other organizations within the movement are not as good and therefore as not as legitimate." Each organization, whether they fall on the same side of a movement, or they are on different sides, must distinguish themselves and advertise what they may or may not be known for. PETA is one of the more well-known animal rights organizations, so by clarifying and stating that they are the largest is important; however, because their name has been around for a long time, and they are more well known, it may also be important for them to add that they're also "growing." By doing this, they're showing that they are not only committed to the work they've been doing for so long, but that they are also committed to expanding their animal rights work, rather than just maintaing. Additionally, since they've already taken the title of being the "largest and fastest growing organization," this may help other animal rights organizations to distinguish themselves when framing and presenting their work to the public. For example, a different organization could advertise the benefits of being a small organization, or they could compare themselves to PETA and explain how their work is a little different, or they could indicate the similarities, since PETA is so well known. The guest speaker from the Bill and Melinda Gates Foundation, for example, explained that the Foundation is often confronted for not doing more environmental/global warming work, and then she went into why they channel their energy and focus upon argiculture and farming in Sub-Saharan Africa.Her comparison of their work to another movement (the green movement) legitimzed and reinforced how important it is for the Foundation to focus upon farming, while other, better suited organizations focus on global warming and energy issues. Thus, both the Foundation's agriculture and farming work, as well as other green movements gained legitimacy when presented through that type of comparison.

Therefore, although I understand Michelle's concerns with this type of rhetoric, I do believe that, although it can be risky, it is one of the more effective ways of showing what an organization is intending to change, and it is most effective in setting up/presenting the legitimacy and importance of their side. Also, when standing on similar sides of an issue, the comparisons made between organizations, and even similar movements, are usually presented in ways that can build up both sides, like with the comparison made during the Gates Foundation talk.

Comm. Rights & Law Blah Blog #1

1) In 1996, the Child Pornography Prevention (CPPA) "[...] made it a federal crime to reproduce, distribute, sell, receive, or possess child pornography as defined by the CPPA" (151). The CPPA prohibited, "[...] youthful-looking adults playing the parts of minors in sexual situations, as well as computer-generated images in which no child was actually involved" (151). Later, the Supreme Court declared the CPPA unconstitutional, as they felt the provisions were "overbroad." Justice Kennedy argued that "[v]irtual child pornography is not 'intrinsically related' to the sexual abuse of children, as were the matierials in Ferber" (152). I agree that virtual pornography is not "instrinsically related" to child abuse; however, since it is still child pornography, I believe some sort of restriction should be made on this type of film/"art." I know that this can be a slippery slope, though, as there are many films and pieces of art involving children and sexual engagements.
Q: What do you think about the provisions of the CPPA? Do you think that they took it too far, and that virtual child pornography should not be considered criminal?

2) When considering nude dancing as freedom of expression, a court case in Indiana concluded that the Indiana public decency law, which prohibits public nudity, including nude dancing in front of an adult audience, did not violate the constitution (162). Indiana requires that nude dancers wear g-strings and pasties, and dancers can never be completely nude. Nude dancing is considered to be "marginally" protected by the First Amendment, as the dancing is considered freedom of expression. The Justices agreed that "[...] the purpose of the ban was not to prevent the dancers from expressing themselves but to combat crime and other harm that allegedly resulted from nude entertainment" (158). This type of harm includes "[...] sexual harassment, public intoxication, [and] prostitution" (158). I agree with Justice Stevens, who doesn't believe that requiring g-strings and pasties are going to make any significant differences in combating nude entertainment-related crime.
Q: Do agree with Indiana's law, or do you think that nude dancing should be entirely protected by the First Amendment? And/or do you believe that these types of crimes could be prevented if there were stricter restrictions around nudity/nude dancing? Why or why not?


3) Through the readings, particularly chapter 10 (constraints of time, place, and manner), and class discussion, it's clear that the laws arounding protest and picketing can get really sticky and very specific. The specifics of laws concerning picketing around women's clinics were of particular interest. For example, in New York anitabortion protesters must remain 15 feet away from abortion clinic entrances and parking areas. Part of this enforcement included a "floating bubble," which protected staff and clients leaving the facility. "The ruling allowed no more than two antiabortion 'counselors' to enter 'bubble' to engage in nonthreatening conversation with persons approaching or leaving the facility" (276). If people didn't want to talk to the "counselors," they had to leave the bubble. This, to me, is a completely legitimate enforcement. Later, however, the "floating bubble" was "struck down." The Chief Justice argued that the bubble burdened more speech than necessary because people wouldn't be able to communicate their message from a normal conversation distance (276).
Q: What's your opinion on the "floating bubble"? Do you believe it should have remained as part of the enforcement provisions, or do you agree with the Chief Justice? What types of issues do you see happening with or without it in place?

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.