Stepping into a new term with Justice Sonia Sotomayor, the first Hispanic justice ever appointed, the Supreme Court of the United States is now looking at a case that might have a great impact on the First Amendment right of the freedom of speech.
The case before the court, United States v. Stevens, No. 08-769, concerns a 1999 federal law which bans sales of "depiction of animal cruelty". Mr. Stevens in the case was sentenced to 37 months in jail because he compiled and sold tapes showing dogfights, even though he himself has nothing to do with the material on the tapes. In addition, much of the footage actually came from Japan, where dogfighting is legal.
According to Adam Liptak, the Supreme Court correspondent of the New York Times, the central issue at the case is “whether the court should for the first time in a generation designate a category of expression as so vile that it deserves no protection under the First Amendment.”
If we rephrase that, the real philosophical question before the court, which is also our first topic today, then becomes: Are there certain values/rights so important that they outweigh the fundamental rights enumerated by the constitution, and violation of these values/rights cannot be protected even by the Constitution? Apparently, the Supreme Court thinks there are. The most recent “unprotectable” category of speech was decided by the court in 1982 – child pornography.
However, even if certain values/rights are more important than others, how do we decide which is which? According to John Rawls’A Theory of Justice, the most basic liberties and rights are decided in the original position before people enter the society and all of them are fundamental values that should be protected. But he didn’t tell us what should happen if two of those fundamental values come into conflict with each other. Should the priority of rights be decided beforehand in the original position? If that is the case, then could people be thorough enough to consider all the rights and assign to them an order of importance? Rawls didn't seem to have provided us with any answers.
Moreover, child pornography would not appear without certain technology advance, and we can assume that 300 years ago people in the original position could not take child pornography into consideration when they designate the fundamental rights. Then does that mean after 300 years with the appearance of child pornography, the society should reenter the original position and a new set of rights should be decided? And if people are in the original position again, should the knowledge about child pornography be regarded as relevant or irrelevant information behind the veil of ignorance? Rawls hasn't said much about that, either. But based on the Supreme Court’s decision about the child pornography, some people, including me and at least the majority of the court, would say that at the moment of the case, the American society somehow reentered the original position and decided that depiction of child pornography should not be protected even with the freedom of speech. Therefore, I conclude that the choice of fundamental rights and liberties in a society should be dynamic and should be subject to constant review. Whether we agree or not, sometimes the Supreme Court acts as the representatives who search for new rights as the society progresses and reenter the original position to make a change.
Now let’s come back to the dogfight case. Given that we agreed certain rights can be more important than others and the society can reenter the original position to change it, a new question arises: Is Animal Rights more important than the Freedom of Speech? Both sides have supporters. On one hand, the News organizations, including New York Times, argued that the free speech right should be upheld. On the other hand, the Humane Society of the United States said that animal right is more important. Since both groups acted out of their individual interest, belief or value, we should turn to people behind of the veil of ignorance and ask what they think. But here comes the problem: all the participants in the original position are human beings. From Rawls’ description of the first principle that “each person is to have an equal right … ”, we can assume people in the original position are only to consider rights for human beings. One support for my argument comes from the whole idea of veil of ignorance, which serves to force people to put themselves in others’ shoes and thus produce a fair principle for all. Since no rational person would imagine him/herself turning into a dog after entering society, it is very unlikely that animal rights will be included in the fundamental rights in any circumstances. (Child pornography is totally different case, because a person could definitely imagine him/herself as the parent of the child.) Another support comes from Susan Okin’s Justice and Gender, in which she argued that only when women are included in the original position would the group “be highly motivated to find a means of regulating pornography.” Again, the logic is that only when people could imagine themselves in the position would they make efforts to protect certain values. Therefore, if animal rights are not decided as a fundamental right in the original position, it then couldn’t outweigh the freedom of speech.
Personally, I side with the First Amendment right in this case. It is not because that I don’t think animal rights important, but because if the court rules in favor of United States in this case, the First Amendment will be subject to more challenges than ever in the future. It would be put into a dangerous place (from a legal and technical perspective which I will not go deep into here.)
source: Free Speech Battle Arises From Dog Fighting Videos by Adam Liptak
1 comment:
I find your asessment of the supreme court's decisions in the dogfight case and the child pronography case very interesting. You are right that it calls into question the order of specific rights/values granted by any system of justice (either the original position or the constitution), something that Rawls fails to address and that the supreme court must deal with every day. Based on precedent, it seems that the supreme court has consistently defended personal integrity over freedoms involving other people or possessions. This suggests a heirarchy of values that isn't explicitly written out in the constitution yet is crucial to our conception of justice.
It is true that in the initial founding of our country's laws, no one could have clearly forseen the advances in technology that would make possible such horrible things as child pornography. This is why, as you say, and as Rawls says in his concept of "reflective equilibrium," we need to be in a constant state of reinterpretation and readjustment of the fundamental laws of our society. It seems evident, then, that when we take part in this review process, we apply our sense of morality to laws that are normally seen as completely rationally conceived.
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