Reflection and Analysis

Nobody Speak: Freedom of Speech 7/1/17

Today I am going to talk about the first amendment and the freedom of speech. I am going to talk about said amendment because of the documentary called Nobody Speak: Trials of the Free Press. I'll start off by saying that the documentary in question is highly biased, but also shows off one of the major misconceptions regarding the first amendment, that said amendment gives you the right to say anything you want to.

In reality, the first amendment does not give people the right to say anything or everything they want to. Here is the first amendment in entirety.

"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."

One of the things the first amendment brings up is that the government can't make any law regarding religion and the practice of said religion, so if one were to look at this to mean an absolute in the same manner the freedom of speech is taken, then one could argue in a court of law that should ones religion call for human sacrifice that one should be allowed to get away with murder, for laws regarding murder are in effect laws "prohibiting the free exercise thereof". However, the taking of another person's life infringes upon the rights of other people. If one looks at the seventh amendment, one may not find themselves "deprived of life, liberty or property, without due process of law".

Another part talks about "the right of the people peaceably to assemble, and to petition the government for a redress of grievances". In this particular case, some argue that the freedom to assemble and protest includes the freedom to riot and commit violent acts, but here again we have the seventh amendment which not only talks about ones right to be able to live but not being deprived of their property either. On top of the seventh amendment, we have the words peaceably used in this part, meaning violence is not allowed, but the word peaceably becomes forgotten.

If there are limitations to these parts of the first amendment, then it does not stand to reason that there are limitations on freedom of speech as well? The answer is yes, there is.

The eighth amendment covers for example trial by jury, where the concept of innocent until proven guilty is used. However, tabloids which tend to slander people print information regardless of whether it is true or not, and the person is considered guilty until proven innocent, yet the tabloids also typically become the judge and jury in these matters. The seventh also covers liberties, which slander ends up preventing a person from having liberties. A few people argue, but the first amendment came first, so it has the most importance. The problem is, there is no significance regarding the numbering of the amendments.

In addition to this, if you look at what would be an exception, it is in that one person's rights end where another people begins. You can't take another person's life, or wreck their property because of the freedom of religion and the freedom to assemble because they have the right to their own life and their own property. In the same regard, people have the right to live their lives without getting slandered by the press, let alone have their lives ruined. In the Bollea v. Gawker case, it wasn't an issue of Gawker publishing the fact Bollea (whose wrestling character is Hulk Hogan) was having an extramarital affair. The issue was that Gawker published the actual sex tape and made it available for the entire world to see. The actual publication of the tape is not covered by the first amendment despite arguments to the contrary.

In the article "Everything Need To Know About Hulk Hogan vs Gawker", the author Maria Bustillos makes a very valid point. "Then there's the revenge porn angle. Revenge porn is a newly virulent crime, and as such has created areas of legal ambiguity requiring new jurisprudence. Eighteen states so far have passed revenge porn laws criminalizing the publication of sexually explicit images without the subject's consent. Such laws demonstrate that it is possible to criminalize revenge porn without damaging the First Amendment protections required by a free press."

In fact, this is super important to note that revenge porn actually isn't protected by the first amendment. In "Revenge Porn: Protected by the Constitution", it is noted by Anne Harrison that "one scholar on the subject posited that such laws are likely to be upheld because the specific nude pictures involved 'have nothing to do with public commentary about society'." Saying Bollea had an affair involves public commentary, but the publication of the sex tape did not, nor was it needed to help drive home the article.

Of course, the ACLU is fighting the Arizona law, as noted in the same article, but as Anne Harrison points out, "the ACLU goes on to state that the Arizona law is overbroad in that it applies equally to private photographs and images that are 'truly newsworthy, artistic, and historical images'," hence why the ACLU is involved. They are actually against revenge porn in the same way they are against purposefully providing minors with adult content. They get involved when laws wording wise have issues that don't just protect, but can have other kinds of legal ramifications should someone choose to abuse said law for an intent it is not meant for. As she also noted, "however, it is not completely out of the question for the Supreme Court to place revenge porn in the zone of no protection as it has done with child pornography and obscenity."

What does this have to do with the documentary in question? Well, the film likes to present Gawker as having their rights infringed upon when in reality they were the ones doing the infringing of another person's rights. It was because of this that the case ended up in Bollea's favor. Yes, it is true that someone rich payed his legal fees, and yes, it is true that Bollea would be very unlikely to win his case had he not had the money to fight Gawker. However, saying that Gawker wouldn't have lost had a power house money wise hadn't shown up doesn't mean that they're in the right. Gawker would have instead won because they had the only power house money wise, so the film is quite hypocritical.

There are a couple of other parts to the film, but this is the part which really upset me. I'm of the full understanding that if a celebrity has an affair, and they get caught, it's going to be news worthy in regards to celebrity news, but also the recording of historical events. However, publishing the actual sex tape went too far. The reason Bollea found a backer is because the person who paid his legal fees felt a point needed to be made that this kind of behavior wasn't allowed, and Bollea was a public enough figure to make it stand out in future court law. The ruling helped to set down a president which should have gone without saying for the courts to use, that this kind of thing isn't cool.