The Perverse Child

We have come a long way since the first historical status of free speech rights for children, presented in Brown v. Entertainment Merchants Assn. In his dissenting opinion, Justice Clarence Thomas stated that, "The concept of total parental control over children’s lives extended into the schools." Thomas quoted Noah Webster, who said, “The government both of fami- lies and schools should be absolute." In other words, initially courts did not give and scrutiny level to cases involving minor’s free speech rights. Schools and parents had the ultimate authority in controlling children, and courts deferred to them. After monumental cases like Tinker v. Des Moines, though, rights of minors were second-guessed. People began to realize that minors’ rights to free speech were being overlooked. Fast forward to today, where we have extreme cases involving minor free speech, like sexting. And what about free speech by adults who use minors as avenues to communication? And nude art? It seems that today, scrutiny levels must be adjusted to fit our international and artistic culture. Today, I will examine two options for levels of scrutiny involving minors, and apply court cases and real-world examples to the practicality of one particular scrutiny level – intermediate scrutiny.

            In the landmark 1969 case Tinker v. Des Moines, a group of 15-year-old minors entered their school wearing black armbands in protest of the Vietnam War. In response, the principals of the school banned the use of armbands for protest, but the Supreme Court overruled that, establishing intermediate scrutiny for minors. In other words, the school has to prove that a student is engaged in material and substantial disruption of the educational process before they are punished. As long as order is maintained, like it was for the students in this example, schools have no right to punish speech. It is at this point in my analysis that I would like to point out that simply calling all people under the age of 18 “minors” may be a but too broad of a term. In fact, there are three separate staged of development for “minors:” The pedic stage, which occurs before puberty, the hebic stage, which occurs in early adolescence, and the ephebic stage, which occurs from the age 15 all the way past legal adulthood, into age 21. That being said, limiting a minor’s rights to free speech may be more complicated than limiting one sweeping age group.

            These subtleties of age, and of act, lead us to our next (and less preferable) scrutiny level: minimal scrutiny. Minimal scrutiny was first established by the 1986 case of Bethel v. Fraser. A young man gave a rather scandalous and phallus-centered election speech that bordered on sexual innuendo. The boy was suspended and the court upheld the suspension. They ruled that although there should be intermediate scrutiny for most minor speech, the scrutiny level could be lowered to minimal scrutiny for sexual speech. This was a critical decision in differentiating the difference between worthwhile and worthless speech, which we must distinguish for minors, especially. Since this ruling, the Supreme Court has not revisited minor speech, although perhaps it is time, considering our increased international activity, the increasing number of tech-savvy minors in various developmental stages, and the reality that most minors, especially in the hebic stage, will encounter sex speech. Instead of censoring it, we need to encourage positive, well-informed sexual speech among minors, and maintain an intermediate scrutiny level for cases of free speech involving minors in the school system.

            Beyond school, though, minors (and adults, on behalf of minors) are finding new ways to express themselves which may taint the land the supreme court drew in the sand with cases like Bethel v. Fraser and Tinker v. Des Moines. First, we can examine how the U.S.’s views may vary with what has been upheld internationally. As an increasingly global society, it is important that we examine these cases to re-evaluate how our court system can work with others, as opposed to against international courts. In the case of The Tin Drum, a German movie that includes a minor engaging in oral sex and intercourse, we have two different views. That of much of Europe and Africa, where ages of consent tend to be much lower, and that of our more strict definitional of minors, usually 16 and over. So how would our courts address movies like The Tin Drum? Originally, in 1973’s Miller v. U.S., The Tin Drum, being a film, would be protected as artistic speech. In 1982’s New York v. Ferber, on the other hand, judges may have the right to freeze-frame movie or commercials to specific parts, using only those frames to make judgments, instead of viewing the whole film. In that case, The Tin Drum may have been seen as pornographic material involving minors and have been banned. What protects The Tin Drum is that in New York v. Ferber and other cases since then, it has been established that there must be a graphic or lewd portrayal of genitalia, and artistic standards also tend to be upheld.

            But what about American art? Are people more sensitive to images involving nudity and minors when it is not “European?” What about arguments that minors may not have a voice at the time? What if parents, or adults, are the ones consenting for the children? Does that make it right? This brings us to the modern example of photographer Sally Mann, who uses her own (often nude) children as subjects in her photography. Is that lewd? Is it necessary? Most importantly, is it upheld? According to New York v. Ferber, and later 1990 court case of Osborne v. Ohio, both Sally Mann’s photography and The Tin Drum would be protected because no children were exploited or shamed, and once again the images were not graphic or lewd. Although one may argue that the initial images could be spun, or photo shopped to appear differently, Sally or the directors of The Tin Drum would not be held responsible for that. Although they both walk a fine line, both are protected under current precedents. Sally Mann is also protected with Miller v. U.S.’ claim that nudity can serve as artistic value and is therefore worthwhile, protected speech. In all of the cases thus far, a level of intermediate scrutiny can be applied to both protect worthless speech like that of Matthew Fraser’s, while still protecting speech with artistic value.

            What we examine next is when artistic value and lewdness seem to cross paths. Hentai porn would be a good first example. In Hentai, images are lewd and graphic, and since they are cartoons and not depictions of real children (a precedent established in Ashcroft v. The Free Speech Coalition of 2002), they are protected, even if the image crosses lines and becomes both graphic and clearly depicting a minor. At first thought, one (including myself) would want to strike this down and ban Hentai porn, but this case would also strike down verdicts for other (more legitimate) artists like Sally Mann and the makers of The Tin Drum. When it comes down to art, everyone’s tastes will be different, but we cannot just censor something because we don’t like what we see, or create double standards, as we must protect others artists and their right to free speech.

            In all of the cases up to this point, we have mainly dealt with adults speaking on behalf of children. But what if it is the children themselves engaging in lewd behavior? What if they are consenting in the behavior? This is where we have to bring up the tricky subject of sexting. Fro those unfamiliar, sexting is the act of sending nude pictures of yourself via electronic device to a willing recipient. In sexting cases, minors are charged with possession of child porn (even if both parties are willing) and convicted as pedophiles. In every other case we have encountered historically, precedents have been established to protect perverse adults from innocent children. But what happens if the children themselves are perverse, and willing participants? In the case of the Lacey, WA teens, strict scrutiny was used, but I would be in favor of changing the court’s current scrutiny level to intermediate scrutiny to protect minors’ speech, even if it is perverse. We must use intermediate scrutiny to differentiate what children do to themselves, versus what adults do to children. What I argue is to amend cases like New York v. Ferber and Osborne v. Ohio, to include a clause that sexual speech among minors (even if lewd or graphic) must be protected if it is between two willing parties. The speech can be unprotected, though, if it is used beyond the owner’s original intent. This way, if a young couple sends each other photos, but later breaks up and the photos are leaked to classmates from an angry ex, the sender can be punished, while still protecting the owner’s rights.

            Although sexting is a fairly new example of the blurred line between minors and adults, and free speech versus pornography, we must do everything in our power to maintain intermediate scrutiny levels for minors to ensure that they still grow up in an environment which promotes a healthy dialogue about tough subjects, the least of which being sex. 

Ruling: Snyder v. Phelps

In analyzing, critiquing, upholding, or overturning U.S. court cases, it is common practice to look at previous judgements. What judgements have we made in the past? Do they apply to current cases? Is there a common standard for each case, or should it vary depending on our current situation, like wartime precedents? These questions complicate judgements, but they also ensure that we continue to assert our freedoms found in the Bill of Rights. The  particular right we find ourselves coming back to time and again is the first amendment right to the freedom of speech. 

In our shifting global society, though, it is important to think of human rights on a scale larger than that which governs our country’s rights. Today, I will assert the right to the freedom of speech not only for the United States, but for the world. 

In the case of Snyder v. Phelps, I, as a hypothetical judge in the International Court of law, would uphold the U.S. ruling and find Phelps’ speech protected under U.S. precedents and the first amendment, as well as global standards such as the Universal Declaration of Human Rights. It is important to note that in this hypothetical (though globally applicable) situation, we are no longer analyzing a freedom of speech found in the U.S. Bill of Rights, we are analyzing the freedom of speech for all people. In order to maintain a just world, we must define these freedoms internationally, not just locally.

In the case of Snyder v. Phelps, Fred Phelps, founder of the Westboro Baptist Church, traveled to Maryland to protest at the funeral of Matthew Snyder, who was killed fighting in Iraq. Matthew’s father, Albert Snyder, saw the tops of Phelps’ offensive signs (including sayings such as, “Thank God for Dead Soldiers,” “Priests Rape Boys,” and “You’re Going to Hell”) as they picketed about 1,000 yards from the church where the funeral was held, 30 minutes before the ceremony. Snyder filed against Phelps and the Westboro Baptist Church for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy, but the U.S. Supreme Court found Phelps not guilty, and protected under the first amendment because the statements were on matters of public concern, although hyperbolic and rhetorical.

It is important, as stated before, to judge this case on a national and international level. Because of this, we will first be analyzing the judgement on a national level, and then on an international level. The first, and possibly most important, distinction in this case, is that Phelps and his congregation followed the rules of protest from the local authorities, and were peaceful in nature. U.S. Philosopher and free speech advocate Alexander Meiklejohn (1872-1964), made an important distinction between public and private speech. Public speech (such as the speech of Phelps, since it was on public land), has the most protection, while private speech can be censored, to an extent. This view of free speech will help us define what would be allowed internationally and what may have limited rights, especially in a global context where some speech may be considered particularly blasphemous or hurtful to certain special audiences. Regardless, Phelps would still be protected under Meiklejohn.

Furthermore, we must consider John Stuart Mill’s (1806-1873) harm principle found in his writings, On Liberty. Mill states that in our right to the freedom of speech, we must also distinguish between the intent to harm, versus the intent to offend. Although Phelps’ speech was definitely offensive to many, it had no harmful intent, as a peaceful protest. Phelps called local authorities before the funeral to make sure he was not breaking any rules by protesting, and did not affect the funeral proceedings in any major way. 

Aside from historical United States standards, Snyder v. Phelps must be held to new global standards, as well. The Universal Declaration of Human Rights states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers,” in article 19. According to the UDHR, Phelps’ speech would still be protected, but unfortunately not all nations are idealistic enough to uphold the UDHR. Countries like Germany do not protect Nazi speech or propaganda, and other countries like Pakistan only protect Muslim speech, and not the speech of Christians. Although the logistics of enforcing such a right as the freedom of speech may be difficult on an international level, it is important that the United States act as a thought leader on the subject, and that world organizations enforce the UDHR as much as they can. Realistically, we may not be able to change every unjust international law immediately, but this does not stop private groups from advocating for justice, as was done in Pakistan with Asia Bibi when she spoke out on her Christian beliefs. 

Where we may struggle with upholding the Snyder v. Phelps ruling, and others like that of Asia Bibi’s speech, is when it can be argued that the speech had the intent to intimidate or cause harm. When does the freedom of speech cross the lines and become a hate crime? Some would say that Phelps did cross the line. In fact, in 2009, the United Kingdom banned Phelps, or any member of Westboro Baptist Church, to enter their nation, asserting that, “Both these individuals have engaged in unacceptable behaviour by inciting hatred against a number of communities... The Government has made it clear it opposes extremism in all its forms... The exclusions policy is targeted at all those who seek to stir up tension and provoke others to violence regardless of their origins and beliefs." Even Mill’s Harm Principle may waver in the case of Phelps according to some, as who is to say that Phelps did not cause emotional harm, or incite hatred against a number of communities? This is when we enter a slippery slope. 

If we rewind to the previous judgements made by my classmates in the case of Asia Bibi, we will see that either way, some party may be hurt by speech. Asia Bibi was tormented by the women in her Muslim community, while the women felt personally attacked, and possibly emotionally harmed, by Asia’s speech. So what do we protect? Only some speech? Only the speech of the party which we as a nation, or globally, favor? It seems that would be unjust. So, we must protect speech regardless of the emotional harm it may cause, for the other option does nothing to advance thought or beliefs, or public opinion. 

What we must do, then, is define more strictly what harmful and threatening speech may be. This issue was brought up in the 2003 United States case of Virgina v. Black, where it was held that cross burning (or other acts which could be defined as free speech, but also acts of intimidation) could only be a criminal offense if the intent to intimidate is proven. Since we cannot prove, conclusively, that Phelps’ intent was to intimidate, and since there was no harm in this case, and only offense, we cannot convict Phelps, as much as some parties may like to. When speech blurs the lines of expression versus hate, we must always go back to Mill and cases like Virginia v. Black to analyze the intent and implications of the speech, rather than analyzing the feelings of those who may have been affected y that speech. 

In the final ruling of Snyder v. Phelps, Chief Justice Roberts made a poignant remark: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” In the United States, as well as globally, we must not punish a speaker if we deem what they say as offensive. It should always be up to the prosecution to prove that the speech caused physical harm, and only then may it be punished. As with the precedent of 1969 case Brandenberg v. Ohio, we must only prosecute speech if it is found to incite imminent lawless action, as opposed to inciting feelings of disgust or betrayal.