Animal Cruelty

During the case of United States v Stevens in which Robert Stevens was convicted of selling depictions of animal cruelty, the United States solicitor general told the Supreme Court during the request for a hearing that “depictions of the intentional infliction of suffering on vulnerable creatures play no essential role in the expression of ideas.” I completely agree with this statement because the depiction of animal cruelty is not a form of expression that should be protected by the First Amendment.
Going as far back as 1971 and the Cohen v. California case, expression was defined as speech that communicated ideas and emotions. The intentional harm of vulnerable animals neither displays one’s ideas or emotions, but is also inhuman. However, what the courts must distinguish is of those who do not commit the act, but simply view it.
We can draw connections to this topic by looking at another big court dilemma, child pornography. In New York v. Ferber, it became illegal for the promoting, distributing, and producing of material that contained child pornography. The law against animal cruelty is also very similar. Now, the law also is similar to the definition of obscene material established in Miller v. California in 1973. The part of material that lacks “serious religious, political, scientific, educational, journalistic, historical or artistic value” can be considered illegal, which crush videos were.
It is a question though, that what is the difference from a crush video from a Hollywood movie that shows a chicken being beheaded or an animal being shot. However, in my opinion there is very defined difference. The law that is in question states that animal cruelty is any “auditory depiction” of the torture or mutilation of a living creature. Hollywood movies declare that the making of films where animals are depicted as being hurt, are not real. Crush videos are definitely real.
Keeping with the film genre, what about documentaries that may display hunting or fighting between animals? I feel that there must be serious journalistic or artistic merit in order to film this. If it is part of nature, that is no question, but in terms of hunting and documentaries I feel that if it is validated by real significance connected to journalistic approaches or teaching then this speech is protected.
Are these videos obscene? Well according to Justice Brennan in the Miller v. California case, obscenity cannot be punished by an offense theory when it related to sexual material that offended community values. He changed his view to the act of consenting adults being able to view or engage in any sexual speech they wanted as long as it did not hold a captive audience or children. In regards to these videos, there is no captive audience and therefore adults should have the privilege of viewing and creating these videos.
The law is now under question based on Robert Stevens and his prosecution for making dog-fighting videos. The law is in question because Stevens defense is that he was filming the dogfights for a documentary and was not endorsing illegal dog fighting. In the exceptions listed above, a documentary could be seen as a serious journalistic approach to animal cruelty. However, another question arises of what counts as serious value?
Is the law overly broad? In one way. I think the law needs to be more specific on what is serious value because I think Stevens should be protected. I think, if possible, the law should be re-written to punish those videos or media that depict real animal cruelty for unnecessary purposes. When I say this I mean that videos, such as crush videos, that depict an unnecessary reason to harm or kill animals should not be allowed the same rights as videos that promote hunting or cultural forms of animal cruelty. So, to ban this form of speech the court would have to have a compelling reason and precise judgment on the form that the animal cruelty is in.
The law in question, which was made in 1999, does not forbid the viewing of crush films; it only forbids the selling, possessing, or creating of a crush video. The act of viewing one is fine due to the fact that most of them are not made in the United States, but in countries where they are legal to make. The videos are uploaded to certain websites and able to view by the world. So, how is it possible to expand the law to illegal to view crush videos? The fact is, that it is impossible. The rights to view crush videos that were legally made outside the U.S. is and should be protected under the First Amendment.
In the review of the Stevens case, I found what some of the judges said as very interesting. When Justice Roberts said that you “have to look at the content” which I completely agree with. I also agree with Justice Scalia when he said, “It’s not up to the government to tell us what our worst instincts are..Once you allow this law, what other base instincts do people have?” This a really good question, but in terms of the unnecessary harm of animals, government should able to punish inhuman instincts, actions, and also the images that display them.
Like previously stated, my view is based on the content of the animal cruelty. In the case of crush videos, I find the making, selling, and possessing any media that shows the unnecessary harm, torture, or killing of an animal is deemed punishable by the law created in 1999 because of its content. However, the law also is capable of banning material that does not display unnecessary animal cruelty as in hunting or documentaries that depict true journalistic value. In the Stevens case I find that he violated the law that was placed, but his challenge against the law is acceptable for the laws view of content is overly broad.

The Nude Family: What is Child Pornography and what is Art?

Sexual performance and sexual conduct by children is something that is both harmful and offensive in regards to child pornography. However, in the form of art, can child nudity be acceptable? The case of Sally Mann, an American photographer, came under public and critical pressure when she published a book entitled Immediate Family. The book depicted her three children, all under the age of 10, in everyday life. It followed them through playful, depressing, and sleeping habits. However, why it was so controversial was that Mann photographed her children nude and many people found this form of art as child pornography. The question arises then: are her photos of her family child pornography?

I personally do not consider Sally Mann's photographs of her children to be child pornography. They are the expression of an artist and a mother. As she puts it when she responds to critics, "natural in the eyes of a mother." This is a great quote that puts a line between pornography and art. If we examine other forms of art and child pornography, we could look at film. In many films, there is a "portrayal" of underage nudity. In 1998, with Titanic, Kate Winslet plays a 17 year old who appears naked on screen. Although, Kate Winslet was over age, her character was underage, which panders the idea of child pornography. Also in the 1990’s film Kids, there are actual underage actors engaging in sexual activity. Though, it is not seen, it is highly implied. So, a big question could be what is it about child pornography in art that offends or harms us?

John Stuart Mill's philosophy on harm and offense can apply to the topic of child pornography. Mills' harm principle says that an individual is free to act on their own will (taking nude photos of their children) as long as it does not harm others. Are the photos harming others? I can see them as offending, but not harming. Joel Feinberg and his offense principle tell people that offensive material in books can be easily avoidable. I find that due to the fact that under parental permission, the pictures do not harm those involved and cannot take such a drastic claim as "being harmful" to others. On the basis of offense, a much lesser charge, I find that there can be offense, but that it is also avoidable.

In the case of Osborne v. Ohio, the topic of child nudity was being tested. The state of Ohio defined child nudity as "graphic focus on the minor's genitals," and many pictures in Sally Mann's book there are pictures of her children naked, but I do not find there to be graphic focus in any of the photos. Photos such as this, I find are more art than offensive. Also, the Ohio law prohibits showing a minor in a state of nudity permissible with the minor's parents have consented with such photographs. In this case, Mann photographed her own children for the purpose of art.

I do not think I would change Ohio’s law and its definition because I already find it too broad. The law stated that nudity is defined as “lewd exhibition of nudity” and I do not find any of the photographs as lewd and also do not believe the art as a whole depicts focus on a minor’s genitals in a lewd (crude and offensive in a sexual way) or offensive way. I consider pictures that display children being portrayed in a sexual way as in engaging in sexual activity or implied sexual activity as lewd and offensive. However, we must also consider the children themselves. In this case, as their mother was taking the pictures I do not see the pictures causing harm to them either.

There is also the issue of if the book should be taken as a whole or parts. Art must be taken as a whole and not divided or torn apart into pieces. If we were to take this photograph and chop it down to only focus on the genitals, it would not be fair because art must be seen as a whole. The historic art piece of Michelangelo’s David, seen below, and countless Greek and Roman art depict children in the nude and sexual activity. In an example of an hour long movie that depicted lewd and graphic display of child genitals as in my definition of lewd, it shall not be protected. What taking art as a whole protects is meant by context of what is being displayed and the situation. I think Mann, as an artist, was displaying the role of a photographer and a mother.

Sexy Internet

The Internet is filled with sex. It is not difficult for anyone to find some kind of adult image on the Internet. You can type in a word to google images or “accidentally” type in a wrong word in the address bar. Whatever the case, the Internet is the biggest contributor of explicit material and has been the topic of indecency cases for years.
In 1997, the United States Supreme Court shot down anti-indecency provisions due to the fact that they violated First Amendment rights. In the case of Reno vs. ACLU, the court overturned the Communication Decency Act. This act was put into place to ban all online communication that was indecent and obscene. The act was supported by Congress in 1996 to protect children from sexually explicit material. However, the court ruled that this violated First Amendment rights.
I one hundred percent agree with the ruling of Reno Vs. ACLU. The Internet has become an enormous gateway for free speech. However, the form of free speech chosen to be expressed through explicit or perhaps “indecent” ways on the Internet needs to be filtered as to not harm children. The decision in the case of FCC v. Pacifica allowed the FCC to prohibit indecent speech during certain times during the day to protect children. As for the internet, there should be something similar to ensure that children can’t get a hold of such sexual material. Today, parents can block certain sites and deny access to search engines. You can also block inappropriate pop-ups and filter spam email. However, if you really want to access such material, most likely you will find a way. The Internet is still a new form of communication and such security kinks need to be worked out.

In the case, Ginsberg v. New York there was a law protecting minors from even seeing “harmful material” even if the material was not classified as obscene. This law is quite extreme as it is overly protected of material that may cause absolutely no harm to minors.
The question is, how far is too far? Sex is becoming less and less of a taboo topic and with the Internet, expressing one’s sexuality is as easy as pushing a button, literally. If we examine other forms of media like print, television, and radio there is a different way of censoring each. More people access the internet then any of the other forms of media. I think that there should be varying levels of protection on different media. Television and radio sometimes are not selective in what it shows or tells.

Sometimes we are watching our favorite show and something we find offensive or obscene that perhaps someone else does not, is flashed before our eyes. There are specific guidelines that television and radio follow, thanks to the FCC. I agree with the flashing of ratings before shows and also that it tells you what may be in the episode. The issue with the Internet is that we choose what websites we click on and also we choose what we want to share with the Internet community.
Sex camming and homemade sex videos are on specific sites and one must choose to go to those websites to find them.
Making these videos or going on webcams is completely protected under the First Amendment. Those who choose to publish this form of free speech should not be regulated. When I say “those who choose” I am only referring to legal adults. There is absolutely no leeway for child pornography. If it is adults who are making this sex videos and playing them on the appropriate sites, then I believe it is completely supported under First Amendment rights.
Philosopher Edwin Baker said that freedom of speech is not a means to a marketplace of idea. He believed that freedom of speech is for individual self-fulfillment and is treated as a universal right. When referring to adults, material deemed obscene and harmful should be determined based on individual’s self-fulfillment to seek out those forms of speech.
In closing, I do not support a federal law that would regulate homemade sex material or a law that punishes Internet Service Providers who allow the posting. I would not label this material as “indecent” as long as it is ONLY adults. We must of course protect children from this material using what is already in place as security on the Internet.

The Case of Ali Al-Timimi: His Violation of Free Speech

In 1969, The U.S. Supreme Court proclaimed in the case of Brandenburg vs. Ohio that the First Amendment would forbid the government from punishing inflammatory speech unless it is directly inciting imminent lawless action.
The First Amendment has been the cause of many historic court cases and in 2001, the words of one Islamic man would come under major scrutiny by the courts. Ali al-Tamimi was convicted for inciting terrorism against the United States. The words he used to advocate to 11 member of the Virginia Jihad Network is said to be the cause of his indictment.
The question that arises is, were his words a expression of his freedom of speech as an American citizen or did they violate the ruling in 1969, known as the Brandenburg case, that it is illegal to incite any form of imminent violence against the government. Al-Timimi told the 11 members of the Virginia Jihad Network that they must travel to Afghanistan to a training facility where they would be able to receive proper training to fight against anti-Jihad troops. Some of these anti-Jihad troops would be American, who are representing the United States government.
These words were said in 2001, 5 days after the September 11 attacks took place. In my opionion, Brandenburg applies in time of war or national emergency. September 11 can be seen as national emergency and Brandenburg calls for the punishment of speech that incites or directs violent overthrow of the government or interference. I, as a Supreme Court judge, would rule that Brandenburg would be directly applied to the speech that Al-Timimi expressed. The attacks of September 11th initiated a national emergency and for someone to incite others to act against the government in a case of national emergency, they should be punished.
Also, under the Smith Act of 1940, it states that it is a criminal offense if anyone “willfully or knowingly advocate, abet, advise or teach the duty, necessity, or propriety of overthrowing the Government of the United States.” However, Brandenburg reinstated that the Smith Act must be changed to include the incitement, immediate, and imminent illegal violence against the Government of the United States. Under this act, Al-Timimi would be in direct violation of this act and should be convicted of a crime. His speech should be punished and the conviction would be ruled constitutional based on Brandenburg and also the Smith Act.
A supporter of the Smith Act, Zechariah Chafee, Jr., described the act as it was enacted to punish those who advocated the overthrowing of the government and would also punish those whom conspired with any others who desired to overthrow the government. Chafee supported self-government through political speech. So, where does the burden of proof fall?
The burden of proof falls under intermediate judicial scrutiny. This is to say that the government must have a substantial reason and basis to regulate and punish a speaker. In this case, the court has the reported speech said by Al-Timimi, which in hand gives the court a substantial reason to punish. The word “substantial” needs to be thought of as probable danger and not immediate. If the court were to take a strict scrutiny level on this case, I believe Al-Timimi would not be punished based on the fact that he never said that he, himself, would be traveling to Afghanistan and training to overthrow the U.S. government. With the scrutiny level at intermediate, I think the court can protect the government and U.S. citizens from offensive and incited speech.
As a Supreme Court judge, I am not punishing Al-Timimi for violating the Smith Act. I am adopting Brandenburg and protecting his free speech. I believe the other justices would uphold my ruling due to the fact that we have a substantial reason to convict him of this crime.

How much freedom is in the 1st Amendment

Free speech means FREE speech. We have a universal liberty to express ourselves freely through the means of our communication. Laws governing communication should protect any individual the right to express this civil liberty.
This sounds almost trivial or right out of a textbook, but what I write in this blog is and will be completely due to my liberty to exercise free speech. I cannot say the same for others around the world that do not and cannot share this same liberty. Most likely because these people are restricted by their government or hold their own religious beliefs.
Religion has been the most testing group of the freedom of speech liberty. Dating back to 1529 and Henry VIII, England supported the Catholic Church in their views of what was considered blasphemous. The church put forth a proclamation that censored “heretical and blasphemous books,” which would go against Catholic beliefs. In 1517, Martin Luther was able to publish his The Ninety-Five Theses, which was a stepping-stone for the Protestant Reformation. Even though there was protection under habeas corpus, the thesis was banned for blasphemy.

Today, the Catholic Church still labels certain publications and persons as blasphemous. Novels like The Davinci Code have been banned from the Vatican and other areas of the world and referred to as harmful to the Church. The Church has also proclaimed that pop star Madonna, who hung herself on a cross in replication of Jesus, is a heretic. These are prime examples of free speech and how people, at least in the Western World, are able to express it without any harm.
Islamic countries are not as lucky in having the universal liberty of freedom of speech. The controversy of the anti-Islam cartoons in a Danish newspaper raises a major question on how far is too far? The cartoons mainly depict Muhammad as a terrorist and also many show Islamic women in a bad light. We must remember that these cartoon are drawn by the Western World, and how that collective culture views Islam at that certain time. The satirical fashion that the cartoons are in meant no harm toward Islam as a whole, but toward those who used their religion for harm against others.
Of course there would be a major backlash in the Islamic community based upon the fact that most Islamic countries do not share the same concept of freedom of speech. When I was in India, we were told that Pakistani journalists were strictly forbidden to raise any sort of bias of objectiveness in their articles. They had to stay true to Islamic views and morals. To be honest, I can easily see why the cartoons are offensive. However, I strongly believe it is free speech and in no way blasphemous to the religion as a whole, but depicts a certain aspect of the religion as the Western World may see it. I believe as long as we hold respect for the fact that there are diverse religions and groups, we may contradict and depict them, as we seem fit. This is our universal right.

In parallel to religion and freedom of speech, I now turn to Dubai and their ambition to build a major movie industry. Dubai craves to be the richest and most lavish city in the world and to do that they want to take a few things from the glamorous world of Hollywood. However, under their strict Islamic rules and morals, it seems to be quite a challenge. Dubai forbid the production of the “Sex and the City” sequel to be filmed there based on view that Dubai women do not spend lavish amounts of money on clothing and accessories. I find this claim completely false. Having been to Dubai, I can tell you personally that the women especially spend massive amounts of money on designer clothing that they can never wear in public. It’s just something for their husbands I suppose.


In respect of their culture I find it absurd that Hollywood be aloud allowed to film any scene or movie that go against Islamic values. It is their country and they have laws that we must all abide by. If you take the example of India and Bollywood, this massive industry has been very successful in creating movies that are appropriate to Hindu beliefs. Just recently, there was massive chaos and uproar of the very first kiss on screen in a Bollywood film.
Like previously states, religion is the most complex subject when it refers to freedom of speech. The courts of the United States have banned religion from being taught in science classrooms all across the nation, however, the topic of evolution has always been a sour subject when it comes to opposing views. The issue of “strengths and weaknesses” of teaching evolution is absurd. Evolution is still a theory and a theory is not proven. So, why not leave evolution to the science classrooms and leave religion to Sunday school? It is personal opinion to adopt wither viewpoint and negate the other. To draw out the strength and weaknesses of evolution in public schools would mean you must explain the strengths and weaknesses of religion.

Freedom of speech is a universal liberty to all. Whether or not we choose to express it is a complete personal option. We cannot blame or point fingers out those who use this liberty as an attack on personal freedom, religion, or politics. Freedom of speech is for all.