Thursday, August 30, 2012

Cohen v. California still has importance today


"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Today we studied the case of Cohen v. California 403 US 15 (1971).  In 1971 Paul Robert Cohen wore a leather jacket with the words "Fuck the Draft" on the back of it inside the Los Angeles County Courthouse. He was a witness in a case and while he wore the jacket before going into the courtroom, once in, he removed it and folded it over his arm. A police officer had seen the jacket and told the judge the man should be arrested for contempt, the judge dismissed the idea. When Cohen left the courtroom he was arrested by the same officer, charged and eventually convicted of violating section 415 of the California Penal code which prohibited "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct."

Cohen admitted that he wore the jacket intentionally in an effort to convey his deep feelings and thoughts about the Vietnam war and the draft. Cohen was sentenced to thirty days in jail and appealed the sentence but the California Court of Appeal upheld it stating that "offensive conduct" is defined as "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace." It went to the State Supreme Court which declined to take the case, and finally ended up in the US Supreme Court.

The justices ruled what the case was not. It was not an obscenity case. For it to be obscene the vulgarity used would have to provoke erotic thoughts. Obviously "Fuck the Draft" doesn't imply anything sexual. Next they ruled out a "fighting words" case. Not only did Cohen not intend for his message to be insulting but no individuals in the courthouse were insulted or provoked into an act of physical violence because of it. 

The key word in this case, where we draw the line, is the word "offensive". Who decides what is and isn't offensive?  The issue at the heart of the case was "whether California can excise, as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory ... that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary."

The word "offensive" meets the requirements of the "void for vagueness" doctrine which simply implies that a law is unenforceable if it is too vague for the average person to comprehend. It is impossible for individuals to clearly determine what is and isn't offensive, as this is completely subjective. Expressions such as "Fuck the Draft" may appear vulgar  but the use of the word "Fuck" in the message conveys a very strong emotion and as the court stated, "In fact, words are often chosen as much for their emotive as their cognitive force."  The court recognized that at times the emotive function "may often be more important element of the overall message" than the message itself. Unpopular as Cohen's use of words or the message itself may have been, at that time, it is that kind of speech, that which is unpopular, which must be protected.

The California law was used to subvert unpopular political speech and this case serves as a milestone and an example for us even today when political speech is the target of individuals of all political persuasions who would stop at nothing to see that it is prohibited by any and all legal means. Individuals who want to get a good idea of the lengths the government (be it local, state, or federal) might go to in an effort to silence certain types of speech, should feel good reading this precedent setting first amendment case.

Friday, August 24, 2012

"Law of Mass Comm" and "Cuba & Puerto Rico" will make for a fascinating semester

Well, it's fall semester and it means two significant things: First, the students are back, all 50,000 of them and second, my classes begin. I'll skip the first one since it's boring and head right to the second.

I'm taking two courses this semester. The first is Law of Mass Communications. The instructor, Clay Calvert, is a Professor and Brechner Eminent Scholar in Mass Communicationis and an expert on First Amendment law. He is the Director of the Marion B. Brechner First Amendment Project. As a writer, I am very interested in First Amendment Issues. The course specifically deals with the First Amendment as it relates to free speech and freedom of the press.  The professor is intelligent, fun and quite animated, the students love him. It's going to be a great semester. Having perused the textbook, I can see we'll be covering things I've blogged about in the past so I'm really looking forward to it. 

The second course I'm taking is Cuba and Puerto Rico: 14th Century to Present. The professor of this course, Dr. Lillian Guerra has a specialty in Cuban and Caribbean History and previously taught at Harvard. She and I emailed prior to the beginning of classes and became acquainted. She's very knowledgeable in her field and it's going to be a great class. It's very interesting comparing Cuba to Puerto Rico. It's also interesting looking at the impact the United States had on both nations. Most people don't stop to think about the fact that America was founded on its stance against imperialism while once we gained our freedom, we imposed imperialist policies on others. Just a thought. Having grown up in South Miami, I had a lot of Cuban and Puerto Rican friends and so learning about the development of these two nations interests me greatly. Don't even get me started on my feelings about the embargo against Cuba.

Anyway, this should be a great semester for these are two outstanding courses I'm really looking forward to. I'm going to blog often about them and use the tag lines I've created. I hope you'll stick around.

Friday, August 03, 2012

When it comes to Chik-Fil-A and gay rights, I'm on the side of...

Chik-Fil-A claims it was founded on what they call "biblical principles". Its founders S. Truett Cathy and his wife Jeannette are devout Christians and believe in preservation of traditional marriage--that between a man and a woman.  The WinShape organization which is the charitable arm of CFA donates heavily to certain causes. You can check them out here at http://equalitymatters.org/factcheck/201207020001

Also, here are a few excerpts of the interview which you can find at http://www.bpnews.net/BPnews.asp?ID=38271
"...as an organization we can operate on biblical principles. So that is what we claim to be. [We are] based on biblical principles, asking God and pleading with God to give us wisdom on decisions we make about people and the programs and partnerships we have. And He has blessed us."

Cathy believes strongly that Christians are missionaries in the workplace. "Jesus had a lot of things to say about people who work and live in the business community," he said. His goal in the workplace is "to take biblical truth and put skin on it. ... We're talking about how our performance in the workplace should be the focus of how we build respect, rapport and relationships with others that opens the gateway to interest people in knowing God.

Some have opposed the company's support of the traditional family. "Well, guilty as charged," said Cathy when asked about the company's position.

"We are very much supportive of the family -- the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that.

"We operate as a family business ... our restaurants are typically led by families; some are single. We want to do anything we possibly can to strengthen families. We are very much committed to that," Cathy emphasized.

Here are my thoughts on this mess.

We live in a nation where we are free to express our opinions without fear of punishment from the government, therefore, I strongly support the right of CFA and its President to vocalize their opinions on this issue. As a staunch supporter of free speech and free expression, I also support boycotts of CFA by consumers and I support individuals picketing their restaurants. 

Some cities are trying to prevent Chik-Fil-A from opening its franchise there. In other cities, Universities are fighting to prevent the business from opening on campus or trying to get rid of those which currently exist on their campus.  I do not believe the Universities should be taking the stance on religion nor do I think they should ban any legitimate business so long as it does not practice discrimination and if they do practice discrimination in the form of hiring and serving, then they should be subject to the law. If the business is a legitimate business which serves all individuals they should be free to open on the campus. If it does well and makes money, it stays but if it doesn't make money, it goes. It's just that simple.  In regards to city government getting involved in banning the franchise, I feel that no government entity should have the power to deny a legitimate business the opportunity to set up shop, nor do I think they should have the power to force out an existing legitimate business, simply based on the religious beliefs of those who own or are employed at that business.

Think about this example...would we stop a Muslim family from opening a business in our community because we might disagree with their strict religious beliefs? If we did, what do you think would be the backlash? You could argue it's different but really it's not. Many would disagree with Muslim beliefs regarding women. Should we ban the Muslim-owned business because the owners have strict beliefs that infringe upon the rights of women? No, unless of course they are doing something which violates the law (that's just common sense).

Most of the world's major religions are opposed to gay marriage and homosexuality as a way of life.  If we start allowing government to ban businesses with certain religious beliefs then we might as well say goodbye to free enterprise.  I don't want to live in a country where government shuts down/bans businesses based on their religious principles, even if I don't agree with those principles. This is where the power of the consumer becomes important. If you want to support the business, then by all means do it. If you don't want to do business there, then shop elsewhere. Let the consumer, not the government, decide if the business stays or goes.

Also I should add in at this point that at least twelve lawsuits claiming discrimination have been filed against Chik-Fil-A in the past and that discrimination is one of the reasons cities are considering banning them. I checked this out and yes, suits were filed and settled out of court but from what I read so far I could find none that had anything to do with sexual orientation. I'd also like to add that if we're going to ban businesses because they have been accused of discrimination, why is there a Wal Mart in every town in America? Wal Mart has been sued and is currently being sued for discrimination against women and minorities and still Americans shop there. Just a little something I thought I'd add in.

Christians believe marriage is a religious institution between a man and woman according to the Bible and that appears to be the basis of their logic for their opposition to same-sex "marriage". They strive to save traditional marriage but does anyone really believe that traditional marriage between a man and a woman is in jeopardy?  Marriage between individuals of the same sex does not devalue marriage between a man and woman. Why are Christians so opposed to something that is really...none of their business and does not affect them?

Recently,  I read posts by friends and others on Facebook which proudly proclaimed their support for Chik-Fil-A. On CFA appreciation day they prayed for America and prayed for a return to moral values in this country. Do they really think people who are in same-sex relationships are the cause of moral decline in this nation? When is the last time you heard or read about people in same-sex relationships committing rape, robbery, murder, or any other major crimes in mass numbers? The people who commit crimes and contribute to the moral decline of America are from all walks of life.  I can find no evidence that gay people nor same-sex marriage has contributed to the decline of morality in this country.

Government has no business defining marriage. Some people believe marriage is a religious thing, others believe it's simply a commitment/covenant between two people, with nothing to do with religion. Who really has the authority to define it? Marriage means many things to many cultures. What right do our politicians have to declare what marriage is and isn't? Government needs to stay out of the business of religion and morality. This of course means that perhaps government should be out of the business of marriage and in the business of civil unions for legal purposes only.

I don't care if someone is gay. I don't care if two people of the same sex want to get married. Why don't I care? Because it's none of my business. In my opinion...any person can live their life any way they want to so long as they do not infringe upon the civil rights of others. That said, you might ask me how I can support Chik-Fil-A's right to free speech. Easy. I don't think CFA is infringing upon the civil rights of gay individuals. Yes, they donate money to organizations that support traditional marriage and some of these organizations have been identified as being anti-gay, however donating money to an organization that promotes certain beliefs does not infringe upon civil rights. Actions, not words, violate civil rights. These organizations that receive donations from Chik-Fil-A have no power to act in a manner that infringes upon civil rights. They can, however, lobby and push politicians and others in positions of power to act and ultimately if those actions infringe upon our civil rights that is when we take action. 

So, in a nutshell, I am all for freedom for everyone and completely against government involvement in defining marriage and enacting laws related to it, as well as banning businesses based on religious beliefs. If you disagree with my stance on this issue and you think I'm wrong, so be it, you are certainly entitled to your opinion. What I do know is that I am pro-freedom and in my opinion that puts me on the side of right every time.