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| What are the 4 Liberty Limiting Principles ? |
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Definition
| Harm to others, Harm to self- legal paternalism, offense, and immorality-legal moralism. |
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| Individual liberty is justifiably limited to prevent harm to others. ( for example: drunk driving, we can't consume too much alcohol while driving, because we can harm others on the road. ) ;This principle is most widely accepted. John Stuart Mill holds that only the harm principle can justify the limitation of liberty |
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| Harm to Self (Legal Paternalism) |
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Definition
| Individual liberty is justifiably limited to prevent harm to self. (for example: the fact that we have to wear motorcycle helmets while riding a motorcycle.) It's called legal paternalism, because it's like legal parenting. The laws are made to parent us in a sort of way. ; J. S. Mill clearly rejects this principle as a basis for limiting liberty. |
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| Individual liberty is justifiably limited to prevent offense to others. ; The older arguments for censorship of pornography on the basis of "obscenity" seem to rest upon the legal moralism and offense principles. |
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| The principle of Legal Moralism (Immorality) |
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| Individual liberty is justifiably limited to prevent immoral behavior; When legal moralism is invoked, "community standards"--perhaps the opinion of the majority in a particular community--are usually used to determine what is moral and what is immoral. J. S. Mill clearly rejects use of this principle as a basis for limiting liberty. In his view, to do so would amount to "tyranny of the majority." ( For example: Making a list of classroom rules/norms together as a class. So, basically as a class we all decide upon what is moral/immoral. )Mill believes government can’t decide something is immoral in democracy |
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| Johnson-Nixon Committee Report |
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Definition
| The commission's report, called Report of the Commission on Obscenity and Pornography, and published in 1970, recommended sex education, funding of research into the effects of pornography and restriction of children's access to pornography, and recommended against any restrictions for adults. ; On balance the report found that obscenity and pornography were not important social problems, that there was no evidence that exposure to such material was harmful to individuals, and that current legal and policy initiatives were more likely to create problems than solve them. |
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| The Attorney General’s Commission on Pornography 1986 ( also referred to as the Meese report ) |
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Definition
This review concluded that there is a causal relationship between exposure to many forms of pornography and several harmful effects including increased levels of violence against women. ( causal realationship meaning that ,the relation between an event (the cause) and a second event (the effect), where the second event is understood as a consequence of the first.)So, basically like saying violence towards women is a consequence of exposure to pornography. Porn has become increasingly violent, degrading and pervasive.
The report also documents what the committee found to be the harmful effects of pornography and connections between pornographers and organized crime. The report was criticized by many inside and outside the pornography industry, calling it biased, not credible, and inaccurate. This committee took up the nature of the pornography industry , and the social, moral, and political concerns relating to regulation of that industry . The committee limited its definition of pornography to predominantly sexually explicit and intended primarily for the purpose of sexual arousal”. |
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| How does Professor Krecz feel about The Attorney General’s Commission on Pornography 1986 ? |
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Definition
| Lecturer thinks that there is no evidence to support the Attorney General’s claims about causal effects. |
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| Mill states that it is acceptable for someone to harm himself as long as he is not harming others. He does argue, however, that individuals are prevented from doing lasting, serious harm to themselves or their property by the harm principle. Because no one exists in isolation, harm done to oneself may also harm others, and destroying property deprives the community as well as oneself.[16] Mill excuses those who are "incapable of self-government" from this principle, such as young children or those living in "backward states of society". Mill argues that free discourse is a necessary condition for intellectual and social progress. We can never be sure, he contends, that a silenced opinion does not contain some element of the truth. Mills also rejects paternalism, because each person is the proper guardian of his health whether mentally, physically, or spiritually. He feels like immorality and paternalism don’t work, offense questionable. He's all about the utilitarian principle. |
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| What is the Utilitarian principle/ Utilitarianism ? |
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Definition
| Ethical principle according to which an action is right if it tends to maximize happiness, not only that of the agent but also of everyone affected. Thus, utilitarians focus on the consequences of an act rather than on its intrinsic nature or the motives of the agent. the proper course of action is the one that maximizes utility, specifically defined as maximizing happiness and reducing suffering. |
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| Why does Professor Krecz NOT like John Stuart Mill ?? |
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Definition
| Lecturer doesn’t like that Mill never touches on hate speech, and 2)he never says the age paternalistic laws can no longer be applied to children. Also, another problem is that 3)there is no clear line that can be drawn regarding what harms other people. Technically almost every decision an individual makes affects the society in some way. |
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Was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law. The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia. They found none, but instead seized three reels of pornographic material from a desk drawer in an upstairs bedroom, and later charged Mr. Stanley with the possession of obscene materials, a crime under Georgia law. This conviction was upheld by the Supreme Court of Georgia.
The Supreme Court of the United States, however, per Justice Marshall, unanimously overturned the earlier decision and invalidated all state laws that forbade the private possession of materials judged obscene, on the grounds of the 1st and 14th Amendments. Justices Stewart, Brennan, and White, contributed a joint concurring opinion. Justice Hugo Black also concurred, with a separate opinion having to do with the Fourth Amendment search and seizure provision. The case also established an implied right to pornography. The majority opinion was written by Justice Thurgood Marshall, joined by Chief Justice Warren, Justice Douglas, Justice Harlan, and Justice Fortas. It was a unanimous 9-0 decision.There were no dissenting opinions in this case . |
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| Paris Adult Theater v. Slaton |
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Definition
| The U.S. Supreme Court upheld a state court's injunction against the showing of obscene films in a movie theatre restricted to consenting adults. The Court distinguished the case from Stanley v. Georgia, 394 U.S. 557 (1969), saying that the privacy of the home that was controlling in Stanley was not present in the commercial exhibition of obscene movies in a theatre. ( basicallly how the whole " you need an I.d. to see a rated R movie came about i'm assuming .) |
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Wicclair first asserts that the principle of freedom of expression is to be considered when contemplating any move towards censorship. He points out that freedom of expression is what makes society free to explore the arts, the sciences, and permits advances in society in general. And so pornography is freedom of expression but to some is seen as degrading so believe it should be censored. However, Wicclair states that different people have different criteria for deciding when something is degrading or humiliating and therefore it may be difficult to censor pornography without a clear-cut definition of what exactly it is that should be censored. He states that the reason some people want pornography to be censored isn’t because it is objectifying to women but because of the alleged adverse effects it has on society. He states that simply because society may restrict the access of a would-be rapist to pornographic material related to rape, does not, by any means imply that he will have been stopped from committing the crime of rape in any way. He goes on to say that even if the depictions in pornography and actual crimes committed in real life were somehow linked, censorship wouldn’t resolve them. Wicclair later states that pornography could maybe decrease crimes or violent sexual happenings from happening in real life, due to people having access to express those desires by watching pornography instead. Wicclair is STRONGLY AGAINST CENSORSHIP. Wicclair believe s in these things : the cathartic effect – porn as substitute (instead of actually raping somebody, get it all out)
b. porn is not the real culprit, look to socio-economic conditions and criminal justice system
c. ill effects can be neutralized with educational campaigns, picketing and more cops in street. |
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| How does Professor Krecz feel about censorship and Wicclair ? |
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Definition
| He actually seems to be on the same page with Wicclair. Krecz feels like : Who would be the censor? Target rape, not porn. Idea of cleaning up the internet is preposterous. |
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porn is significantly harmful and we don’t have a moral right to enjoy it
- influenced by 1986 Attorney General Commission and feminism
- definition of porn: violent, misogynistic words, pictures, films portraying women as being worthy of demeaning and torture
- portrays the harms incurred by those who are featured in pronographic media due immigrant status, language barriers, poverty, drug addiction, etc..
- not arguing for censorship but seems to want it
Susan Brison feels like : if porn harms women, then there is no mroal right to produce, sell or consume it. Her evidence that porn is harmful is : is the slutty participants in the porn. She says porn increases discrimination against/sexual abuse of women AND it harms those that have porn forced on them. Harms men whose sexual desires are influenced by porn. Harms those already victimized by nasty **** as in rape. Porn is a symptom (indication) of a misogynistic culture (hatred of women), not the cause of it. Brison is arguing that there is not a moral right to porn. if there isn't a moral right to porn, then there is no support for a legal right to porn. |
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| What are Professor Krecz's many comments on a lot of Susan Brison's points ? |
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Definition
1) harm to women testimony: Evelina Giobbe
o Lecturer: There is no “moral right” to see children being molested and violated, the acts are already illegal; it’s more important to prevent these acts than what we have a moral right to see
o What portion of the population does this represent?
2) Porn causes brutalization of women and increases chances of rape
o Lecturer: Not proven, consider Wicclair’s solution
3) Increases sexist attitudes toward women in boys and young men and causes harm to them by giving them the wrong idea about sex
o Lecturer: Men should be included in definition then
4) Porn causes harm to those who’ve been sexually victimized
o Lecturer: Then don’t watch it
5) Porn has evil roots
o Lecturer: Lots of things have evil roots. Does that mean we can’t enjoy them?
o We killed Indians for our homes and used child labor for our clothes (my house)
o My shirt - made in other country where there is probably child labor
o It’s cultural “original sin” |
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Term
| Skokie v. National Socialist Party of America (Illinois Supreme Court) (1977) |
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Definition
Was a United States Supreme Court case dealing with freedom of assembly.The Illinois Supreme Court ruled that the use of the swastika is a symbolic form of free speech entitled to First Amendment protections and determined that the swastika itself did not constitute "fighting words." Its ruling allowed the National Socialist Party of America to march. ( In 1977 Frank Collin, the leader of National Socialist Party of America, announced the party's intention to march through Skokie, Illinois. In the predominately Jewish community, one in six residents was a Holocaust survivor. Originally, the NSPA had planned a political rally in Marquette Park in Chicago; however the Chicago authorities thwarted these plans, first, by requiring the NSPA to post a public-safety-insurance bond, then, by banning all political demonstrations in Marquette Park.
On behalf of the NSPA, the ACLU challenged the injunction issued by the Circuit Court of Cook County, Illinois that prohibited marchers at the proposed Skokie rally from wearing Nazi uniforms or displaying swastikas. The ACLU was represented by civil rights attorney Burton Joseph.[1][2] The challengers argued that the injunction violated the First Amendment rights of the marchers to express themselves.)The town had problems with the swastika and claimed that it was intentionally used to incite a riot. Circuit court issued injunctions against:
a. Marching while wearing party uniform
b. Displaying the swastika
c. Distributing pamphlets relating racial hatred. Appellate court modified the injunction, allowed A and C but couldn't display swastika |
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| What are the 3 Skokie case precedents ? |
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Definition
| Cohen v. CA (1971) ; Chaplinski v. New Hampshire (1942); and Rockwell v. Morris (1961). |
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| Was a United States Supreme Court case dealing with freedom of speech. The Court overturned a man's conviction for the crime of disturbing the peace for wearing a jacket that displayed the phrase, "Fuck the Draft." The conviction was upheld by the California Court of Appeal, which held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace. The Court, by a vote of 5-4, per Justice John Marshall Harlan II, overturned the appellate court's ruling. First, Justice Harlan began by emphasizing that this case concerned "speech," and not "conduct," as was at issue in United States v. O'Brien. Harlan then stated that any attempt by California to abridge the content of Cohen's speech would be no doubt unconstitutional except in a few instances, like, for example, if California was regulating the time, place, or manner of Cohen's speech independent from the content of the speech. |
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| Chaplinski v. New Hampshire (1942) |
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Definition
United States Supreme Court case in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech. The complaint against Chaplinsky charged that he had shouted: "You are a God-damned racketeer" and "a damned Fascist". Chaplinsky admitted that he said the words charged in the complaint, with the exception of the name of the deity.
For this, he was charged and convicted under a New Hampshire statute preventing intentionally offensive speech being directed at others in a public place. Under New Hampshire's Offensive Conduct law (chap. 378, para. 2 of the NH. Public Laws) it is illegal for anyone to address "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place ... or to call him by an offensive or derisive name."
Chaplinsky was fined, but he appealed, claiming the law was "vague" and infringed upon his First Amendment and Fourteenth Amendment rights to free speech.
The Court, in a unanimous decision, upheld the arrest. Writing the decision for the Court, Justice Frank Murphy advanced a “two-tier theory” of the First Amendment. Certain “well-defined and narrowly limited” categories of speech fall outside the bounds of constitutional protection. Thus, “the lewd and obscene, the profane, the libelous,” and (in this case) insulting or “fighting” words neither contributed to the expression of ideas nor possessed any “social value” in the search for truth |
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| Rockwell v. Morris (1961) |
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Definition
| Swastika display is symbolic political speech. While offensive, it does not constitute fighting words. Rockwell wasn't trying to incite violence or hate people, he was using the Swastika purely as political speech. first amendment gives Nazi rights to all 3 actions, injunctions unconstitutional |
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| How does the lecturer feel about the Rockwell stuff ? |
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Definition
| Different from Rockwell because it’s in Skokie, a town where members are already traumatized |
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| Erznozik v. City of Jacksonville (1995) |
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Definition
United States Supreme Court case concerning a city ordinance prohibiting the showing of films containing nudity by a drive-in theater located in Jacksonville, Florida. burden is on viewer, with exception of home intrusion or captive audience
- affirms Skokie decision
. The Supreme Court issued a ruling invalidating the ordinance and held:
(a) The ordinance by discriminating among movies solely on the basis of content has the effect of deterring drive-in theaters from showing movies containing any nudity, however innocent or even educational, and such censorship of the content of otherwise protected speech cannot be justified on the basis of the limited privacy interest of persons on the public streets, who if offended by viewing the movies can readily avert their eyes. Pp. 208–212. (b) Nor can the ordinance be justified as an exercise of the city's police power for the protection of children against viewing the films. Even assuming that such is its purpose, the restriction is broader than permissible since it is not directed against sexually explicit nudity or otherwise limited. Pp. 212–214. (c) Nor can the ordinance be justified as a traffic regulation. If this were its purpose, it would be invalid as a strikingly under-inclusive legislative classification since it singles out movies containing nudity from all other movies that might distract a passing motorist. Pp. 214–215. (d) The possibility of a narrowing construction of the ordinance appears remote, particularly where appellee city offered several distinct justifications for it in its broadest terms. Moreover, its deterrent effect on legitimate expression in the form of movies is both real and substantial. Pp. 215–217.
the constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather the responsibility falls on the viewer to avert the eyes, minus the case of home intrusion or captive audience. |
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| What is the problem with Skokie ? (lecturer's i guess ) |
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Definition
| can or should the “fighting words” doctrine ever be expanded to matters other than simple personal confrontation? |
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racist speech is functional equivalent of fighting words
o racial insults should not be protected by 1st amendment
o 2 positions: 1) face to face racial insults are “fighting words” 2) racist speech as the “functional equivalent” of fighting words
o racist insults limited by the harm principle:
§ they produce immediate injury
§ they have preemptive effect on further speech
o failure of the “fighting words” doctrine
- power plays a role |
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| How does Professor Krecz feel about Charles Lawrence III opinion on racist speech ? |
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Definition
| Lecturer: right morally but maybe not legally, everyone could be subject to racial insults |
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| Corry v. Stanford University |
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Definition
case in which the Superior Court of Santa Clara County, California ruled that Stanford University's speech code violated the freedom of speech rights of its students guaranteed under California's Leonard Law. The defendants made two arguments in the suit. First, they argued that Stanford's speech code was protected under Chaplinsky v. New Hampshire, as the code only prohibited fighting words. Secondly, they argued that the Leonard Law actually violated Stanford's First Amendment rights, as Stanford is a private entity.
[edit] Ruling
On February 27, 1995, Santa Clara County Superior Court Judge Peter G. Stone ruled in favor of the plaintiffs.
Stone ruled that the Stanford speech code restricted more than just fighting words, by including insulting speech. Therefore, using the Leonard Law and Chaplinsky, the code was illegal. He ruled further that even if he accepted the argument that the speech code only restricted fighting words, it was still illegal using the Leonard Law and R. A. V. v. City of St. Paul as the code restricted speech based on content.
Leonard Law = (The Leonard Law is a California law passed in 1992 that applies the First Amendment to the United States Constitution to private colleges, high schools, and universities. The law also applies Article I, Section 2 of the California Constitution to private colleges and universities. California is the only state to grant First Amendment protections to students at private postsecondary institutions. Attempts at a federal Leonard Law and for Leonard Laws in other states have not succeeded ).
1. Directed to our question regarding the expansion of “fighting words” doctrine.
2. Stanford regulations:
1) intended to insult/stigmatise individual or group based on sex, religion, race, sexual orientation, etc
2) address directly toward individual(s)
3) make use of “fighting words” in nonverbal symbols
3. Students challenge.
4. Justice Stone: Chaplinski doctrine of fighting words cannot be expanded to allow for the Stanford regulations. They are unconstitutional.
5. This is so because Chaplinski has been narrowed: |
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Term
| Terminiello v. Chicago (1949) |
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Definition
Was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago which banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution. Arthur Terminiello, a Catholic priest under suspension,[1] was giving a speech to the Christian Veterans of America in which he criticized various racial groups and made a number of inflammatory comments. There were approximately 800 people present in the auditorium where he was giving the speech, and a crowd of approximately 1,000 people outside, protesting the speech. The Chicago Police Department was present, but was unable to completely maintain order. Terminiello was later assessed a fine of 100 dollars for violation of Chicago's breach of peace ordinance, which he appealed. Both the Illinois Appellate Court and Illinois Supreme Court affirmed the conviction. The U.S. Supreme Court granted certiorari.
[edit] Majority opinion
Justice William O. Douglas, writing for the majority, reversed Terminiello's conviction, holding that not only was his speech protected by the First Amendment (which was made applicable to the states by the Fourteenth Amendment), but that the ordinance, as construed by the Illinois courts, was unconstitutional. Douglas explained that the purpose of free speech was to invite dispute, even where it incites people to anger; in fact, the provocative and inflammatory content of speech could potentially be seen as positive. Although Douglas acknowledged that freedom of speech was not limitless, and did not apply to "fighting words" (citing to Chaplinsky v. New Hampshire), he held that such limitations were inapplicable here.
[edit] Dissenting opinions
[edit] Vinson's dissent
Chief Justice Fred M. Vinson dissented on the ground that the jury instruction which the majority objected to had been affirmed by both appellate courts. He felt that the Illinois courts had construed the ordinance only as punishing fighting words, and that petitioner's counsel had not previously objected to the instruction below on Constitutional grounds.
Sooo...“stirring public anger” is allowed unless it produces “clear and present danger of serious substantive evil”
Lecturer: What does evil mean?!!! |
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Term
| . Gooding v. Wilson (1972) |
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Definition
Wilson (defendant) was convicted in Georgia (plaintiff) on two counts of using “opprobrious words and abusive language” to insult two Georgia police officers in violation of a Georgia statute. Wilson challenged his conviction against Gooding in federal district court. The district court set aside Wilson’s conviction on the grounds that the Georgia statute was overly vague, and the court of appeals affirmed. Gooding appealed to the United States Supreme Court. reversed a conviction regarding threatening and insulting 2 police officers. The words were not intended to “cause an immediate breach of the peace.”
c. All subsequent cases continued the “narrowing” e.g. RAV v. City of St. Paul says that regulations that limit speech on the basis of content are unconstitutional
Lecturer: If speech can’t be limited based on content, what can it be limited for? |
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Term
| Stanford's Speech Code is... |
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Definition
| Stanford’s speech code which does limit speech this way is also overbroad. The code punishes students for words which may not cause an imminent breach of the peace but instead merely convey hatred and contempt. |
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| Lecturer: Has the “fighting words” doctrine been gutted? |
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Definition
- only way to tell if a breach is going to occur is if it happens
- erring on the side of freedom
- hate speech permissible? |
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