Tag Archive: Freedom of speech

Russian “Gay Propaganda” Law under Fire (Again) after a Newspaper Editor Fined

A Russian court fined Alexander Suturin, a news editor for the Molodoi Dalnevostochnik, a weekly-published newspaper in Khabarovsk, Russia, 50,000 rubles (1421.70 USD) for violating a Russian law which bans “gay propaganda” among minors. The court found Suturin guilty because he published a story about a Russian teacher, Alexander Yermoshkin, who claimed he was fired from his teaching position at Khabarovsk’s School Number 32 because of his sexual orientation. Suturin said he would appeal the ruling.

Russia’s new prohibition against “gay propaganda” that could be accessible to minors took effect last summer. Russian President Vladimir Putin assured the public that the new “gay propaganda” law would not affect the LGBT (Lesbian, Gay, Bisexual, and Transgender) community’s job prospects, saying “the rights of people with nontraditional orientation are infringed upon neither in terms of profession nor salary level.” Putin said that the law is about protecting children, not banning homosexuality. The “gay propaganda” law applies to individuals as well as the media; if anyone, protestor or editor, disseminates information which Russian authorities consider to be “pro-gay propaganda,” they’ll be submit to the fine. Russia’s highest court held that the “gay propaganda” law is constitutional because it applies equally to heterosexuals and homosexuals, stating that the state had an interest in protecting motherhood, childhood, and family. This content-based restriction on speech would likely be unconstitutional in the United States under the First Amendment of the Constitution.

Russia’s “gay propaganda” law has drawn criticism from the international community, fueling the proponents calling for a boycott of the winter Olympics to be held in Sochi, Russia, due to start on Friday, February 7, 2014.

Run and Tweet That

Twitter is an online social networking site that allows millions of people to pour out their thoughts in 140 characters or less. The globally popular site has recently announced that they will begin implementing a new censorship policy. According to Time Magazine, the company described this new policy as, “the ability to reactively withhold content from users in specific countries-while keeping it available for the rest of the world.” Effectively, Twitter is taking on the role of gatekeeper in making sure that tweets that are deemed against the law in certain countries never reach the computer screen of the public.  China and Thailand have gone on the record and applauded Twitter’s steps to censor their users; however citizens of the United States view an act of censorship of this magnitude as a major hit to their Constitutional right of free speech.

Since Twitter is a private company, they do have every right to choose what will and will not be posted on their website.  However, Twitter has constantly held itself out as a completely open public forum that is used as a platform for a multitude of things.  Politicians have turned to Twitter to campaign, new businesses have used this network to take their company to the next level, and people of all ages have turned to this website to update their friends about their lives.  At this point, the United States has not intervened on what is being posted; however, on the eve of pending bills such as PIPA and SOPA, Americans are taking a deeper look into their rights of free speech on the web.  While the purpose behind PIPA and SOPA is to defend copyrights, a large portion of the populace views these bills as censorship and infringement on their rights.  Website such as Wikipedia, youtube, and Pinterest that allow people to post videos, information, ideas and comments would be in violation of the law and would be forced to remove posts or would be shut down completely.

The line between censorship and free speech on virtual public forums is becoming more and more blurred.  The government is getting more involved and taking a closer look at previously unregulated social networks.   Twitter has been extremely useful in getting information to a large amount of people.  This new policy will effectively prevent some of its users from receiving tweets which are deemed illegal by specific countries.



Obvious Product Placement in Top Chef: Just Desserts

The Bravo Channel is known for its use of product placement in its series “Top Chef” and the first season of “Top Chef: Just Desserts” is no different. Several advertisements are present in each episode of the series, but in the October 27th episode titled “Dessert Wars” there was a particularly obvious example of product placement.

After a long day of preparation for the elimination challenge, the contestants return to their apartment. The scene then cuts to an image of a hand opening the freezer with a half-gallon of Breyer’s ice cream on the shelf. The next clip shows a hand grabbing a Godiva chocolate bar from a candy basket. However, there is no reference to these products and the contestants are never shown eating either product or even discussing it. The advertisements for these 2 products are so awkwardly placed in the episode that it leads to the suspicion that the hands shown are not even the hands of the actual contestants. It is pretty obvious that these 2 clips were added after the filming of the show and are meant to be strategic product advertisements. However, it would be more useful for Breyer’s or Godiva if the episode actually showed the contestants consuming the ice cream or the candy being advertised.

This leads to the issue of product placement in television. The Top Chef series ranks high on Nielsen’s list of most effective product placements. The Nielson Company is a global leader in providing research, ratings, and data for all types of media. In 2008, Nielson spend 2.25 million dollars to acquire IAG Research, a company that measures the effectiveness of advertising and product placement on over 210K episodes and over 250K commercial executions. Nielson IAG conducts thousands of surveys daily to measure viewer’s engagement and the effectiveness of every advertisement, product placement and sponsorship in primetime across all broadcast and major cable networks. These scores represent an audience’s level of awareness for the product placement, whether the exposure created positive or negative feelings toward the brand, and whether it raised interest to purchase that product. With the use of Nielson’s IAG research, an advertising company can target its products directly to its most receptive audience.

For 2009, 3 products advertised on Top Chef made Nielson’s top 10 list for the most effective product placements on brand opinion. The show also ranked #7 in the top 10 programs with product placement activity. The series relies heavily on product placement and brand integration for the challenges and tasks in each episode and several companies utilize a combination of product integration to advertise products during the show. Dawn hand care, Albertsons supermarkets, and Breyer’s are all examples of companies that air commercials, place products in scenes of the show, and have banners on the homepage of the Top Chef: Just Desserts website. Due to the success of this show’s product placement, it is no shock that many companies use the show as a vehicle to advertise.

With the increasing popularity of digital recording devices, many viewers are forwarding through the 30-second commercial spots. Advertising within television episodes is increasing drastically due to this trend. This raises the issue of if and how the government should manage advertisers. The Federal Communications Commission currently regulates sponsored programming under the Communications Act of 1934 and requires broadcasters to disclose to viewers if any content of the broadcast has been made in exchange for money, services, or other valuable consideration. These “sponsorship identification rules” are applied and enforced by the FCC in the context of product placement. Broadcasters typically comply with the FCC’s regulations by making a single disclosure at the end of the program that states the sponsors’ name or product. The Federal Trade Commission is only responsible for the regulation of product placements that include false or misleading objective, material claims about products. Consumer protection activists argue that the government should creates more stringent restrictions to prevent deceptive advertising techniques. However, commercial speech is protected by the First Amendment and more stringent regulations would likely violate broadcasters’ and advertisers’ rights. The government should not regulate at the cost of violating the Constitutional right of free expression, especially if the existing regulations are sufficient to address the potential deceptive nature of product placements. The government’s purpose in regulating product placements is to clearly identify any commercial sponsor to television viewers in order to avoid deception. With such blatant advertising as seen in the most recent episode of the newest Top Chef series, it is hard to imagine a viewer who will not realize such blatant product placements.

You Want Some Fries With That Shake?

Thursday’s 30 Rock episode “When it Rains, it Pours” opens with Liz [Tina Fey] on the receiving end of a construction worker’s cat-call.  Initially, Liz believes the comments are directed at her best friend Jenna [Jane Krakowski].  However, the construction worker quickly corrects this misunderstanding and informs Liz the comments were for her.  After openly speculating on the current medical condition of the construction worker’s genitalia, Liz tells Jenna she has never experienced that kind of attention before.  Jenna responds that Liz has been happy and more confident now that she is with someone and guys can sense it.  Liz and Jenna may have shrugged the encounter off, but for many women such an experience is not received as well.

In the workplace setting Congress has provided a statutory remedy, Title VII of the 1964 Civil Rights Act, to alleviate the hostile and intimidating environment sexual harassment creates.  According to the U.S. Equal Employment Opportunity Commission over the past decade sexual harassment grievance filings have gradually decreased.  Whether this is largely a result of Congress’ intervention or more in response to other factors, such as the changing demographics in the workplace, is a topic for another day.  However, since the encounter did not occur in her workplace Liz’s experience raises the interesting question of what legal remedies to women have for such harassment while in public?

Many States such as New York have passed laws that criminalize certain forms of harassment.  For example, under N.Y. PEN. LAW § 240.26:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.

Harassment in the second degree is a violation.

However, the closest the New York law comes to addressing construction worker cat-calls is through subsection 3.  It would be extremely difficult for the New York Legislature to protect women from this type of harassment through a statute directly addressing the issue.  If harassment through speech was specifically addressed instead of using the broad terms of “conduct” and “acts” in the statute, the New York statute might be deemed unconstitutional.

For example in R.A.V. v. City of St. Paul, the United States Supreme struck down a Minnesota statute that read:

Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

While the Court declared “burning a cross in someone’s front yard is reprehensible,” it nonetheless found it violated the right of freedom of speech under the First Amendment.  Certain categories of speech can be regulated because their content is not protected by the First Amendment, such as obscenity, fighting words, and child pornography.  However, the R.A.V. Court held that while the government may regulate generally the unprotected categories of speech the categories are not “invisible to the Constitution.”  The Court cautioned legislators the unprotected categories may not be made “vehicles for content discrimination unrelated to their distinctively proscribable content.”  Thus, even though the Minnesota Supreme Court limited the construction of the statute to reach signs and displays that amount to Fighting Words the statute was still unconstitutional.  The R.A.V. Court reasoned the statute only applied to fighting words pertaining to “race, color, creed, religion or gender” so fighting words pertaining to homosexuality were permissible.  Since the statute only prohibited speakers from expressing their views on certain disfavored subjects, it violated the First Amendment.

Therefore no matter how lewd and lascivious or reprehensible the construction worker’s comments may be, any legislation that specifically addressed it would have to walk a very fine line.  One misstep and the Legislators could find themselves treading on the First Amendment.  In the absence of specific legislative remedies to rely on some women look to alternative means for relief.  The real question to me seems to be, “would you want someone to treat your sister, wife, or mother this way?”

From Prohibition to Jon Stewart: A Constitutional moving picture or snap shot in time?

During his show on Thursday, September 16, 2010, Jon Stewart publicly announced a planned rally in D.C. on the National Mall.  Jon Stewart’s rally comes in direct response to Glenn Beck’s and former Republican VP candidate Sarah Palin’s “Restoring Honor” rally held on the 47th anniversary of Dr. Martin Luther King Jr.’s “I Have a Dream Speech.”  Stewart’s “Rally to Restore Sanity” is the very essence behind the Living Constitution approach to constitutional interpretation.  I can’t conceive of a better illustration to show the need to account for shifting societal norms when construing the very document that governs our daily lives in America.  In an early 20th century case the U.S. Supreme Court was presented the question of whether motion pictures, as a form of entertainment, are afforded freedom of speech protection under the First Amendment.  In writing for the majority, Justice McKenna held:

It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion.

Mutual Film Corp. v. Industrial Com. of Ohio, 236 U.S. 230, 244 (1915)

With the Temperance Movement  responsible for “The Noble Experiment” of Prohibition four years later in full swing the result is not shocking.  However, after America relegated Prohibition to the history books and film had become more commonplace, the Court took a radically different approach in 1952.  In Joseph Burstyn, Inc. v. Wilson, the Court held “expressions by means of motion pictures” are afforded freedom of speech protection under the First Amendment.  If the text of the Constitution had not changed, what other justification exists for such a departure?

The answer to this question surely lies in some societal form of self-preservation.  While as a Country we must be vigilant in upholding the framework laid for our American Democratic Experiment, we cannot do so at the expense of stifling progress.  Under this very context does the true brilliance of our Constitutional Framers come to light.  They crafted a blueprint for a government that is both burly enough to stand the test of time and nimble enough to adapt as conditions require.  This permits the government to run such Noble Experiments as changing societal norms demand while ensuring the preservation of the overarching American Democratic Experiment.  Thus, it is certainly feasible to remain true to the spirit of the Constitutional Framers, while permitting flexibility to meet contemporary societal norms.

As the “Rally to Restore Sanity” demonstrates modern entertainment undoubtedly serves as both the “organs of public opinion” and in some cases as “part of the press of the country.”  In a recent poll by Time magazine, as unscientific as it may be, Jon Stewart was voted “America’s most trusted newscaster.”  The next highest contender was the traditional news anchor, NBC’s Brian Williams, with 29% of the vote compared to Stewart’s 44%.  Even the Daily Show spin-off Colbert Report enjoys a similar impact on public opinion in the political realm.  Political candidates often experience what has been coined “The Colbert Bump” where the candidates experience a temporary boost in their races for office after appearing on the Colbert Report.  This phenomenon was even scientifically verified by UCSD political scientist James Fowler.

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