Tuesday, September 07, 2010

First Amendment: Flynt v Falwell. No Heroes Here

In a discussion last night it was asserted by @AlejoEC that Larry Flynt, the long-time publisher of “Hustler” magazine, was a hero of the 1st Amendment as a result of the decision rendered by the Supreme Court of the United States (opinion rendered by Chief Justice Rehnquist) for having ruled in his favour against the ‘reverend’ Jerry Falwell. My feelings regarding the character of Jerry Falwell aside, I must state that the Court erred in their decision: the application of the First Amendment was never intended to trump the rights of the individual, regardless of whether or not that person is perceived as being a ‘public’ figure or not.

In the case Flynt v. Falwell the case is more complex than merely discussing the idea of a parody of an advertisement in a “men’s magazine”, it goes to the very nature of what our society views as acceptable satire and, more to the point, why we are willing to accept certain things as being acceptable forms of satire while other things are not acceptable. The First Amendment has long been heralded as an absolute conference of “free speech” but, in reality, that is not the case. There have been – and are – several instances in American law where the “freedom” to speak one’s mind is curtailed by the law. People simply are not aware of the restrictions that have been attached to their ‘liberties’ because nobody is challenging them. There is, for example, no freedom to openly libel people (though this is done regularly, it is illegal), and yet, what is the difference between the Flynt v. Falwell decision and openly libelling someone?

While it may go unnoticed, there are regular lawsuits filed against publications that publish false stories about celebrities (‘The Enquirer’ & ‘The Star’ being the most common offenders). Rather than publishing the lurid details of the stories what usually happens is that one or two lines are printed saying that a ‘settlement had been reached, for an undisclosed amount’, with the parties agreeing not to disclose the details. This is the fruit of “free speech” in America – or is it? This is the curtailing of intentional lies, when someone stands up for THEIR right not to have someone spread lies about them. Of course, the luxury of defending your personal honour is only possible when you can afford the legal actions necessary to prosecute the offender. Otherwise, the people printing and spreading the libelous rumors can rest comfortably in the knowledge that nobody will challenge them.

But it’s all in good fun, isn’t it? The papers would say that they were printing their stories just to ‘entertain’ people; nobody takes that stuff seriously, right? Wrong, and whether or not something is taken seriously is completely irrelevant. Is impugning the reputation of an individual NOT libel? What is libel? One definition of libel is “A false publication, such as might be found in writing, print, pictures, or signs, that may be damaging to an individual’s reputation” – which could be argued, and was argued by Flynt’s attorneys, was the same thing as ‘parody’ or ‘satire’ in their advertisement. Innocent fun? It’s all in innocent fun to have a laugh at the expense of someone else, right? That’s what the framers of the Constitution had in mind when they drafted the First Amendment, isn’t it?

“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.” Well, let’s see, the part about ‘free speech’ is not a separate clause, it is connected to the part just before – the part having to do with religion. It is then connected, afterward, with the ‘freedom of the press’, but the abridgement of free speech (or a free press) is composed in dignified terms, not out of tawdry intent. The framers were not looking to open a floodgate of satirical attacks against people that capitalized on weaknesses, disabilities, and any other perceived things that the satirist viewed as being ‘open’ to attack.

This as much goes to the nature of what we view – or accept – as being funny to what satirists desire to lampoon. The question becomes, is it a situation of censorship or sensibility? Whether or not the First Amendment covers a parody of Jerry Falwell in Larry Flynt’s magazine, one must ask themselves the question as to whether society really benefits from the publication of the magazine in the first place. Without examining the monthly publication history of the magazine from its inception it is with some level of confidence that I can say that I don’t expect the world would be devastated by the loss of a magazine filled with porn. If Americans believe that their free speech is represented by a magazine that strips the dignity of women, exploiting them based on what their bodies look like, and taking cheap shots at public figures through satirical ‘parodies’ that lack both originality and humour, then it isn’t a ‘right’ worth a damn. It is, in itself, a parody.

A right that exists solely as a result of the suffering of others is not a right, it is an illusion. You may have the right to express yourself, but if in doing so you hurt someone else, how is that a freedom? You may be ‘free’ to do so, but is it a ‘good’ thing to do? Is it the ‘right’ thing to do? You may be within your legal right to do something, but are you within your moral right to? Rights and freedoms are more complex than what appear on the page, they affect real people, real feelings, real lives, and the exercise of those rights have ramifications that extend far beyond the printed word.

Within the First Amendment, with this ‘right’ to parody the sexual life of Jerry Falwell, for example, sits the absolute right of freedom of religion. Having that as the First Amendment one would think there would be absolutely no issue with staunch conservatives in regards to the building of an Islamic Community Center anywhere, let alone near (within a few blocks) the former site of the World Trade Center. Of course, that is not how this has played out. The ‘right’ has come out virally against the ‘Mosque’ at Ground Zero because it ‘insults’ the victims, and yet, it is the constitutional RIGHT of anyone – of any religion – to worship, without interference. The government cannot stop them.

At the same time, if you deliberately speak lies – libel someone – your ‘right’ to do so shall be curtailed by the law. In essence, what this means is that your ‘right’ to free speech is NOT as absolute as you may think it is. It is an illusion. The courts have ruled on this in the past and it has been upheld (see Gooding v. Wilson 405 U.S. 518 (1972) in which the use of epithets or personal abuse is not considered proper communication or a sharing of opinion under the protection of the Constitution and is punishable as a criminal act under that instrument.).

It is alright to disagree with someone and it is alright to joke about them, but to denigrate an individual solely for the purpose of getting a laugh? Why? What is funny about causing another person pain (aside from the German ideal of ‘schadenfreude’ in which we derive pleasure from watching the misfortunes of someone else, though it is not really meant as the observance of something as banal as the parodies discussed herein). The idea that another person’s suffering is something that we should be deriving joy from is, at its base, something that we should be outgrowing as a species. Even children learn that this type of humour is inappropriate, particularly when it is directed toward them. Cruelty is not funny, it is just that – it denigrates and tears people down when we should be doing things to build each other up and encourage individuals.

Free speech, if it is such a precious commodity, should be revered rather than used by a purveyor of smut to make a fortune by denigrating women and stamping on their rights. When does one right trump another? If you have the right to free speech does that over-rule the rights of women to not be portrayed as nothing more than sex objects? How are women to be seen as fully equal (something guaranteed them under the 14th Amendment) if the exercise of the 1st Amendment subjugates them and portrays them purely as sexual objects to be used and tossed away when they no longer have anything to offer.

An argument used by some to defend Larry Flynt and his victory over the use of indecent parody has to do with the ‘right’ to be expressive in their writing. As a writer living in Canada, one who does not have ‘First Amendment’ protection I do not have the luxuries of living with such broad freedoms; in Canada there are lines that cannot be crossed in the world of publication, as protected by our Charter of Rights, and they are lines that have been emplaced to protect others. We cannot write things that foment hatred against others, nor can we disparage other ethnic or religious groups, and there are some other things that are not relevant to this discussion. Suffice it to say, the ‘freedoms’ that may seem curtailed – to someone with ‘First Amendment’ protections are, in reality, truly protections against mindless attacks by people who are unable to make a reasoned argument and must therefore resort to personal attacks rather than facing specific issues.

I have written several times in defense of the Islamic Community Center in New York, not because I am a Muslim – I am not – I am a Christian. My motive has been purely out of the existence of the First Amendment and a hatred of hypocrisy. My feelings about Islam have been formed out of having taken a course (an “Introduction to Islam”) while I was a student in university that introduced us to the precepts of the religion. Not Islamic extremism, not fundamentalist Islam – the Islam that is practiced by nearly one Billion Muslims around the world and which stands as one of the three monotheistic religions of the world.

One can study Islam in one of two ways, either with the benefit of a teacher who understands the religion and loves it or through the tainted gaze of the press, practicing their ‘freedom of speech’ in an attempt to formulate their own agenda, replete with graphics, pundits, and diverse experts opining about the dangers posed by the ‘devilish’ religion.

Free speech is only free when the rights of others are not impinged. If your free speech violates the rights of someone else, how is that freedom? The idea that ‘no man is an island’ exemplifies the idea as we see one person’s ‘rights’ cause suffering in someone else. This is not freedom, it is abusive.

If people want truly free speech they should first learn something about the respect of others and the dignity of humanity. We need an understanding of what equality means and that denigrating someone for your own monetary gain is being a mercenary, not an expresser of free speech.

As I said before, with all due respect to the Supreme Court, in the case of Flynt v. Falwell, they got the decision wrong. Flynt is not a hero of the First Amendment, he is just a sorry old purveyor of porn who should do the right thing and stop treating women like trash. Exploitation has nothing to do with freedom – it is antithetical to the ideal and stands in opposition to everything that freedom stands for. It is decidedly NOT free speech.

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