In a 1973 case, Miller vs. California, the Supreme Court created a test for legal obscenity, which involved a set of requirements that must be met for material to be legally obscene… material is obscene if (1) the average person finds that it violates contemporary community standards; (2) the work taken as a whole appeals to a prurient interest in sex; (3) the works shows patently offensive sexual conduct; and (4) the work lacks serious redeeming literary, artistic, political, or scientific merit.(Miller, 167)
Who determines who the average person is, what is and is not sexual, and if it has a certain merit? That is the problem with this test. The standards of obscenity change from person to person. You may not even want to see certain “art”, but end up seeing it anyways. Some people may not find these paintings to be offensive and are entitled to their own opinion, but they may be considered offensive to others. If any picture, painting, or sculpture shows any private section of a human body it should be censored to protect society as a whole.
These artists abuse their free speech privileges and corrupt the minds of any person subject to these portraits of the human body without consent. Others abuse their power through the use of words. Some believe that free speech entitles them as a person to say whatever they want. But it doesn’t. The use of fighting words is considered to be an offensive act and is therefore illegal in the United States. You can however wear or give a gesture that is offensive to another and have the legal right to do so. An example of this would be if you walked up to a Jewish person and said, “Hail Hitler”, you would be legally responsible if a fight then occurred. On the flip side of this situation, if you were to wear a swastika symbol on a shirt and proceeded to get into a fight with a Jewish person, the Jewish person would be legally responsible. How does this occur? Can’t a symbol be considered a fighting word? My Business Law professor, Roland Carlton, a practicing lawyer, said a symbol is not considered to be offensive to others according to the law. He also stated during class that the person wearing the symbol must confront another person with the symbol for it to be considered offensive; otherwise it is just a symbol on a shirt without any meaning at all. The point at which a person confronts another is subject to some interpretation. One may consider it just wearing the symbol, while another may consider it to be when you actually go up to another and flaunt it directly in front of them. However, these symbols can be offensive to others no matter how you display them and should be censored.
It is odd to see the fact that most courts give full protection of freedom of speech in most situations even when it involves “fighting words” or “hate speech.” A man’s case, in which he was charged for riding a horse through a gay rights rally and shouting antigay slogans, was thrown out of a Minnesota court. It was stated that “he cannot be prosecuted under a Minnesota “hate crime” statute because the statute violates the First Amendment. The court concluded that the statute sweeps too broadly because it also criminalizes protected ‘expressive activity’” (Miller, 164). But why is this not considered to be an offensive act toward another? The state of Minnesota considers this an act of expressing their personal beliefs and does not believe it has the right to infringe on this person’s activity. This man did indeed carry out offensive acts against others. He may have only been expressing his opinion, but his derogatory comments could have had drastic affects on the psyche of the people participating in the rally. He should have been subject to the penal code for these horrific actions.
Our views can be expressed as far as burning a United States flag on the steps of the Capital in Washington D.C. This is a form of free speech that does not infringe on the rights of any other human being. A person burning a flag is considered to be practicing their free speech against the government, and is therefore a legal action. This should not be so. It is illegal to burn a sheet on the steps of the United States Capital. This is illegal because you can cause bodily harm to others around you. A burning flag has just as much a chance of causing harm to another as a burning sheet. Even though it is an act of political protest, you have the chance of causing harm to another and should therefore be illegal.
How can we have the freedom of speech if there are so many loopholes to be found within one clause, of one amendment? There are so many different situations in which you can look at the actions of one person and consider it a form of “free speech” or a form of defamation upon another person’s character or a harmful act upon another. When should we really draw the line? You may think that you the right to say or do what you think is appropriate to state your position, but when you least expect it you have crossed that line and you are subject to the consequences of your actions. Ignorance of the law does not save you from our legal system. Mark Twain said it best when he stated, “It is by the goodness of God that in our country we have three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence to never practice either of them” (Miller, 173).
Freedom of speech is the most prized freedom that Americans have. Without it we would not be able to express our disgust of political actions or policies. Our nation was formed on the basis of expressing our opinions without being persecuted for expressing our thoughts. This forms the foundation of our democratic system. But the line must be drawn somewhere. There are too many double standards that cause certain actions to be legal and others to be illegal. Freedom of speech should be granted to any words, actions, signs, or symbols used that do not infringe on the rights of any other human being and are not considered offensive. If we allow others to abuse their free speech privileges, then out system begins to be abused. Allowing people to express their opinions should never be taken away, but to a certain extent should be regulated.
Bibliography
“Constitution of the United States of America”, 1776.
<http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti>
Goodwin, Jean. “Free Speech.” Northwester University. 1997-2001 < http://faculty-web.at.nwu.edu/commstud/freespeech/>
Isenberg, Douglas M. “GigaLaw.com Law Library: Free Speech Cases.” Gigalaw. 2000-2002 < http://www.gigalaw.com/library/freespeechcases.html >
Miller, Roger Leroy, and Frank B. Cross. The Legal and E-Commerce Environment _ Today. Ohio: South-Western Publishing Company, 2002.