Week_10+-+Barron+and+Garthoff

__**Week 10 - Cohen, "Freedom of Expression."**__

http://www.jstor.org/stable/2265305

On page 215, Cohen writes, when citing //New York Times v. Sullivan// and //Hustler v. Falwell,// “values associated with a system of free expression outweighed those injuries.” What he means is the injuries that were //experienced// by Falwell, albeit a public figure, were not substantive to assault the value of free expression as a whole. I have been continually been coming back to this idea throughout the semester: That I value living in a country that allows for instances of seemingly heinous free expression, not malicious or with intent to harm—such as those instances of racist and sexist speech (among others)—but rather instances that cause an ire of the message recipients. Such as instances of fiery talk-radio talk shows, editorials in pornographic magazines, and fervent ‘fire and brimstone’ speech acts, or a release of government cables. As much as I find certain speech acts reprehensible, and morally questionable, I am pleased to live in a country which allows for such speech acts, due to the opposite being totally incomprehensible. I do not desire to live within a system of government that has an oppressive rule over the acts of free expression on its people. I tend to follow a Sartian-Existential perspective with regards free expression. Given its operative word ‘free,’ one ought to adhere to the responsibilities of the choices that they make given their freedom. For Sartre, we are free and we have responsibilities given the choices we make in reaction to our freedom. Looking at free expression through an existentialist lense, one ought to better recognize their responsibility in how they are free to express themselves. If they write something, say something, in an act of expression, they better be able to adhere to their responsibility for claiming such things. Not adhering to the responsibilities that comes from such freedom is reprehensible on many fronts.
 * Bryce Blankenship:**

On page 225, Cohen gives three cases which delineate the "importance of the expressive interest" (out of three interests served by free speech: expressive, informational and deliberative). These three cases, within the expressive interest category, are: "1, one in which there is an "obligation to speak out" on matters of importance or immediacy, 2, when one's speech "adresses a matter of political justice", and 3, when one's expression is motivated by "concerns about human welfare and the quality of human life". Ironically, pornographic expression falls under this third category, according to Cohen. My questions are as follows: do these categories square with the sorts of values of free speech expressed by the First Amendment, Madison, Rousseau and Meiklejohn? Is this sort of "expression" (particularly in the case of pornography) the same sort of thing as "free speech" as conceptualized by the Bill of Rights and these men? To me, justifying pornography (of any kind) in the way Cohen does here strikes me as a far cry from what was intended by both the writers and the language of the First Amendment, particularly given the amount of evidence we have today of the harms caused by this sort of material. Is there another human right that is articulated in the Bill of Rights that would serve to protect women (and the men, too--because it isn't good for them, either) from exploitation of this sort, which could be used to trump the freedoms the pornographers are claiming?
 * Susan Thomas **


 * Tyler Morrison **

After summarizing the Miller test for obscenity, Cohen states that: “the intuition is that sexually preoccupied, offensive junk does not merit stringent constitutional protection. It is an interesting question, which I will not pursue here, why the sexual preoccupation makes a difference.” I think that this question is something that is indeed very interesting. He makes an interesting point in saying that the “costs lie in offensiveness” because an expression can be offensive without being of sexual preoccupation. It seems to me as though the reason the courts chose to regulate this particular expression was due to the fact that it was particularly in the public interest. It seems as though he could easily work this idea of sexual preoccupation as not being different from other obscenity into his overall theory of the costs of expression without too much more work, but I may be overlooking some things.

**Tim Johnson** As one of his 'Unhappy Facts of Life,' Cohen states, "(4) The Fact of Easy Offense: Putting sociopaths to the side, everyone is offended by something" (234). He may be correct on this point. My own thought tends to indicate that he is; after all, am I not occasionally offended by acts, utterances, or (in some of my FAR less charitable moments) certain existences? Naturally, the things which __I__ find offensive are the things which all right-minded people also find offensive, but I cannot get behind the idea that offensiveness is an acceptable reason, necessary, sufficient, or relevant, to the regulation of __anything__, much less speech. Hume may be correct: there may be a certain social sympathy that can lead to general agreement on a subject, but a mere emotional reaction to a thing is not a good reason to prohibit it, no matter how many people share that reaction. Such regulation is, to my mind, open to charges of the tyranny of the majority, a thing not to be desired, particularly in this case, since it is possible to be offended by a thing at one point, then, at another point, not to be offended by that same thing due to a shift in perspective, bias, or other motivating factors. Thus, it seems, mere offensiveness is not enough reason to regulate. Did anyone else find a part of Cohen that offered justification for 'offensiveness' being an acceptable reason for regulation? I didn't, but I may well have missed it...

Aly Lamar- Cohen's discussion of the minimalist strategy concludes that simply, "expression has substantial value" (p.210); his comparison of this non-formal theory with maximalist and nihilist theories on free speech help set the stage for his argument for stringent protection of free speech. As a student new to philosophy, I had a difficult time wrapping my brain around Cohen's use of the term "autonomy" in defining minimalist, maximalist and nihilist strategies, as well as referencing others such as Schneider or Scanlon's "listner-autonomy." //(footnote 38).// Cohen's explained that "each of the basic interests that I have mentioned is sometimes included within the value of autonomy…" (p. 229) and that identifying these differences in autonomy "helps to clarify the importance of those interests within different evaluative conceptions and also to provide the basis for a theory of expressive liberty." He begins his own alternative strategy discussion after summarizing that the alternative would "free the doctine both from the insulting idea that expression is costless and from the sectarian idea that it is priceless." (p. 222) I find it interesting that Cohen's alternative strategy, as he states himself, is "not, after all, so sharply distinct from them //[the sectarianism of autonomy-based and maximalist views of freedom of expression//] (p. 229)

“Taking the unequal command of resources as a fact, a system of stringent protections must include measures aimed expressly at ensuring fair access to expressive opportunities. Such measures might include: keeping traditional public forums (parks and streets) open and easily accessible; expanding the conception for a public forum to include airports, train stations, privately owned shopping centers, and other places of dense public interaction…” (p. 215) -Does Cohen’s idea of extending the definition of public forum make sense? The part of this quote that worries me is that it suggests we include privately owned areas in a new definition of a public forum. Cohen alleviates some of this worry when he introduces the quality of dense public interaction. But still, even if the public regularly frequents my property, should the speech opportunity there cancel out my right to prosecute for trespass? Does the speech opportunity outweigh my interest as a private individual to determine what activity to allow on my property? Imagine a case where the speaker comes into my supermarket with a megaphone and stands by the check stands, giving a speech that condemns shopping. Here some direct damage might be done, as the speaker may cause people to cease coming here and shop at a competitor’s market. Cohen on p.211 writes, “the costs of expression can, in an important range of cases, be addressed through… more speech.” Is this one of those cases?
 * Ben Gearheard**

In his essay, //__Freedom of Expression__//, Cohen discusses different school codes of conduct on speech, specifically hate speech, on pages 207-09. He goes over issues that are taken up by people who feel regulating speech/expression is wrong. But isn’t it the schools duty to protect the rights of the majority in a democracy. This is why I don’t have an issue with universities having regulations on speech because as one of the majority who find what is being said offensive then I don’t think it should be allowed. Also being that we are paying to be here and that this is a business/ school environment which are supposed to be safe environments, hate speech should not be tolerated. I see it as the same as when you are in a work situation and someone is reprimanded for use of a racial slur or other pejorative term, because they agree choosing to be at work and work under a contract they are not allowed to use certain phrases or words, so too are students under a contract of sorts called the code of conduct, then we may not use certain words. I may be the only one who feels this way in the class but I feel it is right, and schools should have the right to restrict logical actions and words as they see fit.
 * Brian Malone **


 * Brendan O'Donnell **

Cohen discusses fair access to expressive opportunities in a number of places. On page 245-6, Cohen states: “If we insist that “more speech” is the preferred remedy for combating the harms of speech, and appeal to the Brandeisian injunction as part of a case against content regulation, then //we also have an obligation to ensure fair access to facilities of expression//” (emphasis added). Cohen goes on to explore how even content-neutral regulations, such as regulating the distribution of handbills or the use of parks and sidewalks. He says that these “work to impose disproportionate burdens on those who otherwise lack the resources to get their message out” (247). Cohen penned this long before the ubiquity of the Internet. My question is, does the Internet, which must be counted as “a location with dense public interaction”, therefore “ought to be treated as a public forum that must be kept open to the public” (247)? Furthermore, the Internet is an expressive opportunity with, arguably, reduced costs associated with expression. There is no burden on taxpayers to pay for the cleanup of stray handbills or provide police presence. So, is it true that the availability of the Internet must be protected in order to combat the unequal access to expressive opportunities? Can it be restricted at all? Also, does this extension of the public forum make unnecessary Cohen's suggestion of extending public forums into all areas of dense public interaction?

Beth Ropski- "I am not suggesting that all libel law is inconsistent with stringent protections of expression, or that the intentional infliction of emotional distress always deserves protection, or that fines for littering always offend the ideal of freedom of expression. I mean only that even uncontested facts of reputational injury or emotional distress are not always sufficient to deprive expression of protection-as when the target of expression is a public figure or when the expression focuses on a subject of general inter- est. When, for example, New York Times v. Sullivan required a showing of "actual malice" in order for a public figure to win a libel judgment, or when Hustler v. Falwell required actual malice in cases of the intentional infliction of emotional distress, there was no suggestion that actual mal- ice is necessary for reputational injury or emotional distress. Instead it was held, in effect, that the values associated with a system of free expression outweighed those injuries." (215)

I find this part of Cohen's essay interesting. I would agree that expression should be free even if it is emotionally distressing to others. As I've stated before in my posts, I would like to hold the public to a higher level of morality, in the sense that they would 'punish' the person who would be emotionally distressing others instead of having to have the law step in (by 'punish' I refer to shunning or ignoring or telling off; not violence). I enjoyed the Hustler example included that we discussed previously in class. I think that this example is applicable to many other similar situations (regardless of level of fame). It appears that misunderstandings are a cause of many people being upset about public expression. As the Hustler case was a parody of Falwell (who failed to recognize this and believed them to be producing false information on himself), many people will say things in sarcasm and be misunderstood (e.g. the example we talked about in class of the actor speaking at Obama's fundraiser). Many injuries seem to be people who merely want to come across as a victim to receive compassion from the public. I struggle though when it comes to more hateful speech (such as the example in the beginning of this essay about the racist comments on the board). Where do we draw the line for free speech? What do we define as hate speech vs satire/sarcasm? Can hate speech be covered up by sarcasm (e.g. 'I hate everyone who isn't white... haha, just kidding.', etc)? I suppose this is the purpose of this essay, to attempt to draw somewhat of a line. I feel confused about where I would even draw that line though because of rational contradictions.

In section I Barron summarizes Kant’s views on book properties as follows, “Kant’s premise is that a book considered as a material object must be distinguished from a book considered as the vehicle for an activity of authorial speech. On the one hand, an author’s manuscript, and every printed copy of it, is an ordinary object of property attracting an ordinary right of property vested in whoever is legitimately in possession of the object. This right would include the right to use the object, to sell the object and indeed to copy the object. On the other hand, a published book is also a communication from the publisher to the public in the name of the author (…) For Kant, it follows that unauthorized publication of the copies of the author’s text – though not unauthorized reproduction as such – is wrongful. It follows from this text that according to Kant the text itself belongs solely to the author and the publisher has rights limited to its publication. My question is if, the ideas in the paper always belong to the author and never the publisher wouldn’t it follow that the book’s author would have to right to allow as many people to publish it as he or she wanted? My knowledge of current publication procedure is limited, but I do believe when being published the author loses the right to go to other publishers and have it printed there. Would a Kantian account allow for the author to freely spread his or her work without the publisher having lawful grounds to stop it?
 * Travis Dawson**

From the bottom of page 239 to the second paragraph on page 240, Cohen clarifies what he feels is the root of the idea of the nihilism of free speech, “Justification must always proceed in terms of the aims, interests, and aspirations of particular groups, in terms of 'some particular partisan vision'”, plainly, “there are no common or shared interests that can serve as a basis for justification.” Cohen objects, believing that there is a formation of common ground by the acts of deliberation, expression, and information. I disagree, and I wonder if my grounds are reasonable. I see in the act of free speech, protected in the way Meikeljohn would say, placing responsibility on the “listener” for why speech is protected, and again from the idea of Rousseau’s formation of a general will, I see that a true common ground will never be formulated, even by the three means Cohen provides; any expression can lead to further division on the speech, deliberations will never come truly unified afterward, and information, even at the point of being true, will always find objections and even skeptics on if it is believable. I find then there is no true common ground to be reached, and it will only come about for smaller wills which will not constitute the general will.
 * Randall Gunn**:

Matthew Baughman: "We are concerned to do what justice requires: anyway, that is what we say; that is what we want other people to think we are committed to; it is what we want to take ourselves to be committed to. Not simply what we think justice requires, or what we warrantedly believe it to require, but what justice requires. But caring about justice, as the political concep- tion indicates, requires caring about the truth about justice. If a concern about justice has—as I said at the outset—a place in democracy’s public reason, then so, too, does a concern about getting it right, that is, about the truth about justice. We of course should, while keeping a concern for the truth, steer clear of needless controversy about the nature of truth: the political conception of truth suffices to meet that aim; nothing either so extreme or so fugitive as leaving the concept of truth out is needed. As for the anxiety that comes with the concern to get justice right: that comes with the territory of taking justice seriously. We can live with it, should not live without it, and should not enlist philosophy to provide therapy for that anxiety." With this conclusion it seems that Cohen is prescribing a non-apathetic political view if we are to be concerned about truth in terms of justice. While we operate under different theories of truth in western thought, it seems anxiety should be the driving force for him. I would agree that we should pursue truth in terms of our definition of justice and a general will. The question that remains in a non-metaphysical system of truth is to what standards would it look like in analyzing political thought? How should we interpret patently false statements in the political sphere? When obfuscating values to serve as a means to an end, like corporate tax breaks, how do we approach those who have an obviously false metaphysical framework but share the same values?

On page 233, Cohen discusses some of the costs of limiting free expression. One he calls the Cold Facts. Essentially, Cohen expresses his worry that if free expression was regulated so that people could not say offensive, obscene, wrong, etc thoughts, then people would be 'chilled' or wary of expressing their ideas. I find this compelling and everyday examples of this can be seen. In the society I grew up in, discussing race conflicts and inequalities was very stigmatized and because of this I did not share my opinions; and by not sharing your opinions you do not grow in your own understanding of things because much of learning is bouncing ideas off others. What I am talking about here is also the more flexible public sphere, I haven't even mentioned the government attempting to censor. Given that restriciting expression would mostly likely be done through legislation, limiting expression is even more costly as the government would be required to come up with a vague principle that could be applied to all the varities of free spech/expression: a task I do not think the government is capable of succesfully of doing without causing many harms.
 * Jordan Howser**

On pages 233 and 234, Cohen lists the “Unhappy Facts of Life,” the fourth one being “The Fact of Easy Offense: Putting sociopaths to the side, everyone is offended by something.” He reiterates this “fact” on 241 when he says: “I do not deny that there is a cost or 'price' to offensive expression; indeed the cost is direct.” His solution to this problem of cost is simple: those offended simply need to “avert their eyes.”
 * Ryan Braun**

The idea that “everyone is offended by something” is a strong Western notion. There are many Eastern perspectives (I'm thinking specifically of Taoism and Theravada Buddhism) which encourage adherents to accept things for what they are, and, as such, people who take the philosophies seriously are difficult if not impossible to offend.

Is there not an alternative to simply averting one's eyes from that which is offensive? Can we not simply learn to shed the emotional reflex response of being offended by things going on around us? Is there any evidence to suggest that being offended is a natural response? If there is evidence to suggest just that, is there additional evidence to suggest that it is a healthy response?

Personally, I am rarely (if ever) offended by anything. That does not mean that I tolerate all behavior. I frequently think others are wrong, but I know that being offended by the viewpoints and actions of others does not accomplish anything. Political and social disagreements often arise from ignorance on the part of one or more parties involved. In other cases, those involved are simply talking past each other without realizing it. Allowing yourself to be offended is an obstacle to progress. Education eradicates misguided viewpoints. Getting upset about them only drives them underground at best.

Kristopher Kinzler “Take, for example, the case of libel of private figures. The vulnerability of reputations, the difficulty of repairing them through more speech, and the fact that such libel is typically not supported by weighty expressive or deliberative interests combine to reduce the appropriate level of protection.” (245) Earlier in the semester we went over different categories of libel, one of them being private or defamatory libel. Now, some un-incorporated businesses, like mom-and-pop stores or restaurants are reviewed online through different sites like yelp.com/tripadvisor.com/urbanspoon.com and are given what one might argue are libelous reviews. I work at The Angry Bear and when we first opened there were certainly bad reviews, not always about the food, but about particular servers and the owners. The question that’s going through my mind is whether or not the internet should be regulated in publishing libelous posts or whether the forum falls safely within Cohen’s, deliberative and expressive interests space?